Appellate Division of the Supreme Court of New York, 1972

Kennelly v. Charleston Auto Sales, Inc.

Kennelly v. Charleston Auto Sales, Inc.
Appellate Division of the Supreme Court of New York · Decided October 2, 1972
40 A.D.2d 679; 336 N.Y.S.2d 192; 1972 N.Y. App. Div. LEXIS 3839
Kennelly v. Charleston Auto Sales, Inc.

Opinion of the Court

In an action to recover damages for personal injuries, defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County, dated November 3, 1971 as, in granting their motion to dismiss the action for failure to serve a complaint, did so only *680conditionally, i.e., only if plaintiff were to fail to serve a complaint within a stated time. Order reversed insofar as appealed from, on the law and in the exercise of discretion, with $10 costs and disbursements, with the result that the granting of defendants’ motion is absolute. Plaintiff failed to serve any affidavit in opposition to the motion explanatory of his default in serving his complaint and showing a meritorious cause of action. Moreover, he failed to make any motion to open his default in the service of a complaint. Accordingly, the motion to dismiss should have been granted unconditionally (Crudele v. Fishman Co., 36 A D 2d 631; Salinger v. Hollander, 19 A D 2d 559; Powell v. Becker Truck Renting Corp., 20 A D 2d 573). Munder, Acting P. J., Latham, Gulotta, Christ and Benjamin, JJ., concur.

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