Grayco Builders Inc. v. Sherrill

Order, Supreme Court, New York County (Price, J.), entered December 24, 1981, granting, on consent, defendants’ motion to dismiss the complaint, unanimously reversed, to the extent appealed from, on the law, without costs or disbursements, and the words “without prejudice” stricken from the decretal paragraph. Eighteen months had elapsed from the service of a notice of appearance and demand for a copy of the complaint. Plaintiff offered no opposition to defendants’ motion to dismiss for failure to serve a complaint (CPLR 3012, subd [b]). In fact, a representative consented to the dismissal. Thus, no justification existed upon which to condition the dismissal of the action “without prejudice”. In striking “without prejudice” from the order of dismissal we do not pass upon the effect of such dismissal. Concur —■ Murphy, P. J., Sullivan, Ross, Silverman and Asch, JJ.