SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
March 4, 1969
NETTIE BANDLER ET AL., RESPONDENTS,
ARTHUR MAYER REAL ESTATE, APPELLANT
Concur -- Capozzoli, J. P., McGivern, Markewich and Steuer, JJ.; Rabin, J., deceased.
Defendant appeared in the action and demanded service of a complaint on July 1, 1965. No complaint was served, and on April 17, 1968, this motion was made. The excuses offered, illness of plaintiffs' counsel and the death of his wife, all took place substantially prior to the initiation of the action. The protracted delay is unexplained and the action must be deemed to have been abandoned (Colson v. Shapiro, 9 A.D.2d 612; Fischetti v. 242 East 19th St. Corp., 4 A.D.2d 867; Sortino v. Fisher, 20 A.D.2d 25, 29).
Orders entered May 27, 1968, denying motion to dismiss for failure to make timely service of the complaint and granting cross motion to vacate default reversed on the law, the facts and as a matter of discretion, without costs or disbursements, and motion granted and cross motion denied.
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