Kahn v. Columbo , 425 N.Y.S.2d 33 ( 1980 )

In a medical malpractice action, defendants appeal from an order of the Supreme Court, Queens County, dated July 25, 1979, which denied their motion to dismiss the action for failure to serve a complaint. Order reversed, on the law, without costs or disbursements, and motion granted. Plaintiffs’ failure to make a motion to vacate their default, prior to serving their complaint, entitled the defendants to an unconditional granting of their motion to dismiss the action. It was an abuse of discretion to deny the motion on the basis that a complaint had eventually been served (see Gelch v Malrich Realty Corp., 47 AD2d 644). In any event, in view of the inordinate length of the delay in serving the complaint, over 21 months from the date of the demand, the affidavits offered by plaintiffs setting forth an excuse for the delay and the merits of the action were insufficient (see CPLR 3012, subd [b]). Rabin, J. P., Cohalan, O’Connor and Weinstein, JJ., concur.