RASCOE v. CLARK

This action was commenced against defendant Fasulo by the service of a summons upon her on September 22, 1975. On December 9, 1975 defendant Fasulo served a notice of appearance and demand for a complaint upon plaintiff's attorney. Since no complaint was received for approximately 20 months, defendant Fasulo moved, pursuant to CPLR 3012 (subd [b]), to dismiss the action for failure to serve a complaint. Special Term conditionally dismissed the action unless plaintiff served a complaint on defendant Fasulo's attorneys within 10 days. On this appeal it is contended by defendant Fasulo that her motion should have been granted unconditionally. Although plaintiff alleges on appeal that her attorney appeared on the motion, the order being appealed from recites that no one appeared in opposition to defendant's motion. In any event, no papers were submitted in opposition. Plaintiff's failure to offer a satisfactory excuse for the lengthy delay and her failure to submit an affidavit of merits requires a modification of the order on appeal and the unconditional dismissal of the action as against defendant Fasulo (Hanley v Callanan Inds., 60 A.D.2d 706).

Order modified, on the law and the facts, by striking so much thereof as conditionally grants defendant Fasulo's motion to dismiss and by providing that the motion is granted unconditionally, and, as so modified, affirmed, without costs.