Homburger v. Geschwind

a malpractice action, defendant appeals from an order of the Supreme Court, Kings County, dated January 7, 1980, which (1) denied his motion to dismiss the action for failure to serve a complaint, and (2) granted plaintiff’s cross motion to require him to accept the complaint. Order reversed, on the law, without costs or disbursements, defendant’s motion to dismiss the action is granted and plaintiff’s cross motion is denied. In opposing defendant’s dismissal motion brought pursuant to CPLR 3012 (subd [b]), plaintiff failed to demonstrate a reasonable excuse for the delay and to establish the legal merit of her claim through evidentiary facts attested to by individuals with personal knowledge. Consequently, the denial of defendant’s motion was an abuse of discretion (Barasch v Micucci, 49 NY2d 594). Gulotta, J. P., Cohalan, Margett and O’Connor, JJ., concur.