Piscopo v. Delman (127 A.D.2d 826, 1987)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Dickinson, J.), entered August 12, 1985, which denied his motion to dismiss the action for failure to timely serve a complaint.

Ordered that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, the motion is granted, and the action is dismissed.

Since the plaintiffs sought to serve their complaint after expiration of the 20-day statutory period following service of the demand therefor, it was incumbent upon them to establish a reasonable excuse for the delay and a prima facie showing of legal merit (see, Egan v Federated Dept. Stores, 108 AD2d 718). Instead, however, they did nothing after the defendant rejected their complaint as untimely served and failed to oppose the defendant’s motion to dismiss the action pursuant to CPLR 3012 (b). In light of these defaults, Special Term erred in denying the defendant’s dismissal motion (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904). Mangano, J. P., Brown, Rubin and Eiber, JJ., concur.