Chiles v. Lee Super Market, Inc.

Order entered October 1, 1962, unanimously reversed on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and motion to dismiss for lack of prosecution granted, and cross motion for an order opening plaintiffs' default in serving the complaint denied, with $10 costs. The plaintiffs-respondents have not demonstrated any reasonable excuse for their inordinate delay in serving a complaint herein or for their failure to move to open default in service when *615they were notified by defendants that they would not accept a complaint, and there is no factual showing of any merit to this action. Consequently, it was an abuse of discretion to have denied the motion to dismiss and to grant the cross motion to open plaintiffs’ default in the service of the complaint. Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.