Rodriguez v. City of New York 22 A.D.2d 643

Order entered June 17, 1964 denying defendants-appellants’ motion to dismiss the complaint for lack of prosecution on condition plaintiff serves a defendant with the complaint—not theretofore served—within 5 days and placing the case on the calendar within 45 days, unanimously reversed, on the law, on the facte, and in the exercise of discretion, with $30 costs and disbursements to appellants, and the motion granted, with $10 costs. The accident occurred on January 4, 1961. A summons was originally served on October 3,1961. After service of process on other parties, defendants appeared by a combined notice of appearance on February 5, 1962. However, no complaint was ever served. Thus, a period of approximately 24 months elapsed from the time defendants demanded a complaint and the motion to dismiss was made. Plaintiff has failed to demonstrate any reasonable excuse for the inordinate delay in serving a complaint. Moreover, there was no proper affidavit of merits submitted. In fact, the papers indicate that counsel for plaintiff has been unable to locate his client for some time. Under the circumstances, it was an improvident exercise of discretion to deny the motion. Concur—Breitel, J. P., Valente, McNally, Eager and Steuer, JJ.