Burgess v. Long Island Railroad 38 A.D.2d 750

In an action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Suffolk County, entered July 29, 1971, which granted its motion, pursuant to CPLR 3012 (subd. [b]), to dismiss the action, unless plaintiffs had served a complaint within 10 days after the date of the decision. Order modified by striking therefrom everything following the words that the motion is “ granted ”. As so modified, order affirmed, with $10 costs and disbursements to appellant. The record discloses that plaintiffs failed to serve their complaint for a period of nine months after a demand therefor by defendant. Plaintiffs also defaulted upon the motion by defendant to dismiss the action, offering neither an excuse for their failure to serve the complaint nor an affidavit of merits. Under these circumstances, Special Term abused its discretion in granting the motion to dismiss conditionally (Wemple v. Cador et, 29 A D 2d 1033; Schwartz v. National Fire Ins. Co. of Hartford, 25 A D 2d 727; Waldron v. Ward, 24 A D 2d 470). Rabin, P. J., Hopkins, Martuscello, Latham and Gulotta, JJ., concur,