Buono v. Makita U.S.A., Inc.

— In an action to recover damages for personal injuries, the defendants separately appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ramirez, J.), dated June 26, 1989, as provided that their separate motions to dismiss the action pursuant to CPLR 3012 (b) were granted unless the plaintiff served a complaint within 10 days of the date of the order.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the defendants’ motions to dismiss the action are granted unconditionally.

Since the plaintiff did not oppose or even appear on the motions to dismiss his action for failure to serve a complaint pursuant to the defendants’ demands (see, CPLR 3012 [b]), he neither provided an excuse for his delay nor addressed the merits of his case. It was thus error as a matter of law to grant the motions conditionally (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Stolowitz v Mount Sinai Hosp., 60 NY2d 685; Jones v TSS Seedman’s Inc., 131 AD2d 728). Kunzeman, J. P., Sullivan, Harwood and Rosenblatt, JJ., concur.