Marshall Field & Co. v. Stern & Herff Corp. (15 A.D.2d 889, 1962)

The action was commenced by the service of a summons on December 23, 1959. Defendant appeared and demanded service of the complaint on January 12, 1960. The complaint not having been served for 20 months thereafter, defendant, on October 2, 1961, made this motion to dismiss; and while the motion was pending, but before the return day, plaintiff served its complaint. Although there is an affidavit of merit made, not by the party, but by its attorney, which would sufficiently meet the requirement that merit must be shown to defeat a motion to dismiss for default in pleading, there is no proof whatever of any fact or circumstance justifying the long failure to serve the pleading. This is left entirely unexplained in the record, and would require that the motion to dismiss be granted. (Wakschal v. Century Estates, 10 A D 2d 891; Gray v. Yale Transport Corp., 11 A D 2d 1072.) Concur — Rabin, J. P., Valente, Stevens, Eager and Bergan, JJ.