Galio v. Restrepo

In a negligence action to recover damages for personal injury, defendants Vaccaro and Cortelli appeal from an order of the Supreme Court, Kings County, dated July 1, 1970, which inter alia denied their motion, pursuant to CPLR 3012 (subd. [b]), to dismiss the action for failure to serve a complaint. Order reversed, on the facts and in the exercise of discretion, with $10 costs and disbursements; motion granted; and action dismissed. Plaintiffs failed to adequately excuse the 14-month delay in service of the complaint and to submit a proper affidavit of merits. Under these circumstances, the denial of the motion to dismiss the action was an improvident exercise of discretion by the Special Term. Rabin, P. J., Munder, Martuscello and Latham, JJ., concur; Shapiro, J., not voting.