Reilly v. Lopez Publications, Inc.

Order entered June 17, 1982 in Supreme Court, New York County (Andrew Tyler, J.), denying defendants’ motion to dismiss for failure to timely serve a complaint, unanimously reversed on the law, motion is granted and the action dismissed, without costs. H This is an action for damages and injunctive relief brought under section 51 of the Civil Rights Law and the common law of defamation. Plaintiff served her summons on October 26,1981 but failed to serve a complaint until January 8,1982, despite demands of defendants made within a month of the service of the summons. When the complaint was finally served, defendants rejected it and moved for dismissal. (CPLR 3012, subd [b].) 11 Special Term found the delay to be unprejudicial to defendants, stating that “plaintiff’s cause of action appears to have merit and if dismissed a new action would be barred by the applicable Statute of Limitations.” While such may appear to be true from the complaint and the exhibit of the magazine cover — submitted by defendant Lopez Publications, Inc. — the complaint itself was not verified and plaintiff failed to submit any affidavit of merit in opposition to the motion to dismiss. “Because of this deficiency it was error as a matter of law not to grant the motion to dismiss without condition. (Amodeo v Radler, 59 NY2d 1001; Barasch v Micucci, 49 NY2d 594, 599; Sortino v Fisher, 20 AD2d 25,31-32.)” (Stolowitz v Mount Sinai Hosp., 60 NY2d 685, 686.) Concur — Ross, J. P., Carro, Bloom, Milonas and Alexander, JJ.