McAuliffe v. Bailey

In an action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Westchester County, dated October 6, 1971, which granted its motion to dismiss the action pursuant to CPLR 3012 (subd. [b]) unless plaintiff served his complaint within 20 days after service of a copy of the order with notice of entry. Order modified by striking from the first decretal paragraph everything following the words that the motion is “granted”. As so modified, order affirmed, with $10 costs and disbursements to defendant. Defendant moved to dismiss the action one year after service of its notice of appearance and demand for complaint. Plaintiff failed to oppose the motion, offering neither an excuse for his delay nor an affidavit of merits. Accordingly, the motion to dismiss the action should have been granted unconditionally (Burgess v. Long Is. R. R. Co., 38 A D 2d 750; Crudele v. Fishman Co., 36 A D 2d 631; Beckham v. Lefferts Gen. Hosp., 36 A D 2d 726). Rabin, P. J., Hopkins, Munder, Gulotta and Brennan, JJ., concur.