OPINION OF THE COURT

On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate *798Division abused its discretion in dismissing the complaint pursuant to CPLR 3012 (subd [b j). As we held in Barasch v Micucci (49 NY2d 594, 600-601), it would have constituted an abuse of discretion to have failed to dismiss.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.