SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 22, 1969
DOROTHY WELSH, RESPONDENT,
IRVING KASKEL ET AL., APPELLANTS
In a negligence action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Kings County, dated March 3, 1969, which (1) denied their motion, pursuant to CPLR 3012 (subd. [b]) to dismiss the action for failure to serve a complaint, and (2) granted plaintiff's cross motion to permit her to serve a complaint.
Christ, Acting P. J., Rabin and Martuscello, JJ., concur; Benjamin and Kleinfeld, JJ., dissent and vote to affirm the order, upon the opinion of the Special Term.
Under the circumstances disclosed by the record, the denial of defendants' motion to dismiss the action was an improvident exercise of discretion by the Special Term. The excuse offered by plaintiff's attorney, to wit, that extensions of time lulled him into believing the complaint had already been served, is inadequate to justify the delay (see Gerson v. Finkelstein, 29 A.D.2d 552; Zakarias v. Radio Patents Corp., 28 A.D.2d 997; Francisco v. Walgreen Eastern Co., 25 A.D.2d 681; Waldron v. Ward, 24 A.D.2d 470; Greenwald v. Zyvith, 23 A.D.2d 201).
Order reversed, on the law and the facts, with $10 costs and disbursements; defendant's motion granted; and plaintiff's cross motion denied.
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