Preferred Mutual Insurance v. Walter J. Socha Builders, Inc.

Appeal from an order of the Supreme Court (Walsh, Jr., J.), entered July 2, 1986 in Schenectady County, which conditionally granted defendant’s motion to dismiss the action for failure to serve a complaint.

Plaintiff commenced this action by service of a summons with notice in November 1985. Defendant served a demand for *924a complaint and agreed to extend the time for serving the complaint for 30 days, to March 10, 1986. Plaintiff failed to serve a complaint and, in May 1986, defendant moved to dismiss the action pursuant to CPLR 3012 (b). Supreme Court granted the motion only upon the condition that plaintiff fail to serve a complaint within 30 days. Defendant appeals.

It is well settled that the failure to timely serve a complaint will result in dismissal unless it is shown that there was both a justifiable excuse and a meritorious cause of action (Egan v Federated Dept. Stores, 108 AD2d 718; Wurzburger v Smith Fuel Co., 101 AD2d 620). Here, plaintiff failed to satisfy either of these requirements. Indeed, plaintiff did not submit any papers in opposition to defendant’s motion to dismiss. Under these circumstances, it was error as a matter of law not to grant the motion to dismiss without condition (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Stolowitz v Mount Sinai Hosp., 60 NY2d 685; Marks v Levine, 45 AD2d 715).

Order modified, on the law, without costs, by striking any conditions attached to the granting of defendant’s motion, and, as so modified, affirmed. Casey, J. P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.