Finan v. Queens Transit Corp. ( 1984 )

In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Queens County (Durante, J.), entered January 25,1983, which granted defendant’s motion to dismiss the complaint. I Order affirmed, with costs. H A summons was served in February, 1978, and defendant promptly served a notice of appearance and demand for complaint. Defendant subsequently moved in July, 1982 to dismiss the action, alleging that the complaint had not been served until June, 1982. Plaintiff opposed the motion, contending that the complaint had actually been served in March, 1978, and attached an affidavit of service by mail. Assuming that the complaint was served in March, 1978, the action was still properly dismissed because plaintiff failed to move for a default judgment within one year of defendant’s default in answering, and plaintiff has not demonstrated “sufficient cause” to excuse this failure (see CPLR 3215, subd [c]; Winkelman vH &S Beer & Soda Discounts, 91 AD2d 660). Plaintiff failed to demonstrate any excuse for the four-year delay and no affidavit of merits was submitted (see Winkelman v H & S Beer & Soda Discounts, supra). The failure to submit an affidavit of merits requires dismissal of the action as a matter of law (see Canter v Mulnick, 60 NY2d 689; Stolowitz v Mount Sinai Hosp., 60 NY2d 685). Lazer, J. P., Gibbons, Bracken and Lawrence, JJ., concur.