Johnson v. Viola

— Appeal from an order of the Supreme Court (Kahn, J.), entered September 28, 1990 in Albany County, which, upon reargument, granted defendant’s motion to dismiss for failure to serve a complaint.

Supreme Court determined that plaintiff failed to demonstrate that her failure to timely serve a complaint was excusable. Her counsel admitted that defendant withdrew all extensions to serve by correspondence dated October 31, 1989 and demanded service by November 20, 1989. No complaint was served and defendant waited to move to dismiss after the expiration of an additional five months from the time of his demand. As the court noted, the failure to serve was wholly unexplained. Even if it is accepted that plaintiff made a prima facie showing of legal merit, the question of what constitutes a reasonable excuse for delay lies within Supreme Court’s discretion (Muka v Chalenski, 97 AD2d 912) and, insofar as we find no abuse of that discretion in this case, the dismissal of the action for failure to timely serve a complaint must be affirmed (cf., Dattoria v Dattoria, 161 AD2d 1009; Cobbs v Lefrak Org., 85 AD2d 616).

Casey, J. P., Mikoll, Yesawich Jr., Crew III and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.