Ruggieri v. Sheridan Beer Distributors Inc. (40 A.D.2d 711, 1972)

In a negligence action to recover damages for personal injuries and loss of services, defendant Sheridan Beer Distributors, Inc. appeals from an order of the Supreme Court, Nassau County, dated August 27, 1971, which denied its motion to dismiss the action as against it on the ground of plaintiffs’ failure to serve a complaint within the time specified in CPLR 3012 (subd. [b]) on condition that plaintiffs’ attorney serve the proposed complaint within 15 days of the date of the order. Order reversed, in the exercise of discretion, with $10 costs and disbursements, and motion granted unconditionally. Forty-eight months elapsed between the time of the service of the notice of appearance and demand for the complaint and the making of the motion to dismiss. In our opinion the failure to dismiss the complaint unconditionally was an improvident exercise of discretion (Bamford v. Kaunitz, 37 A D 2d 682). Hopkins, Acting P. J., Munder, Martuscello, Gulotta and Brennan, JJ., concur.