McNamara v. Past Time Pub, Inc.

In an action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), dated August 5,1983, which denied its motion to dismiss the complaint pursuant to CPLR 3012 (subd [b]) for failure to timely serve a complaint, upon condition that plaintiff pay $250 to the defendant. 11 Order reversed, on the law, without costs or disbursements, motion granted and complaint dismissed. 1Í Plaintiff commenced this action on March 9, 1982, by the service of a summons with notice. On April 20,1982, defendant served a notice of appearance and a demand for a complaint. Plaintiff neither served the complaint nor moved for an extension of time to do so. On April 27, 1983, defendant moved to dismiss the action pursuant to CPLR 3012 (subd [b]). II As plaintiff did not submit an affidavit of merits, Special Term should have granted defendant’s motion to dismiss the complaint (Stolowitz v Mount Sinai Hosp., 60 NY2d 685; Tonello v Carborundum Co., 91 AD2d 1169, affd 59 NY2d 720; Jellinger v Mollad, 80 AD2d 872; Sortino v Fisher, 20 AD2d 25). Accordingly, it is not necessary for us to address the question of the reasonableness of plaintiff’s excuse for the delay in serving the complaint (see Stolowitz v Mount Sinai Hosp., supra). Lazer, J. P., Mangano, Weinstein and Brown, JJ., concur.