Schwarz v. Horn & Hardart Co. 26 A.D.2d 944

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Queens County, entered May 3, 1966, which denied defendant’s motion, pursuant to CPLR 3012 (subd. [b]), to dismiss the action for failure to serve a complaint. Order reversed, without costs; defendant’s motion granted; and action dismissed, without costs. Under the circumstances disclosed by the record, the denial of defendant’s motion to dismiss the action was an improvident exercise of discretion by the Special Term. Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.