SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
April 29, 1968
GARTH WEMPLE ET AL., RESPONDENTS,
FRANKLIN CADORET, APPELLANT
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.
Memorandum by the Court. Appeal by the defendant from so much of an order of the Supreme Court at Special Term entered in Fulton County as granted the plaintiffs 30 days within which to serve a complaint and upon compliance excused the default of the plaintiffs in timely serving their complaint (CPLR 3012, subd. [b]). The record shows that more than a year had elapsed from the time when the plaintiffs were required to serve their complaint. The plaintiffs also failed to appear and/or submit a proposed complaint or any excuse for their default upon the return date of the motion. Under such circumstances, the motion should have been granted.
Order modified, on the law and the facts, by striking so much of the second decretal paragraph as grants a 30-day extension of time to the plaintiffs and by directing that the action be dismissed for failure to serve a complaint, and, as so modified, affirmed, with $10 costs.
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