Opinion
July 8, 1974
In a negligence action to recover damages for personal injuries, etc., defendants appeal from so much of an order of the Supreme Court, Kings County, dated December 28, 1973, as, in granting their motion to dismiss the action for plaintiffs' failure to timely serve a complaint, did so only if a complaint is not served within a stated time. Order reversed, insofar as appealed from, with $20 costs and disbursements, and motion granted unconditionally. Plaintiffs' failure to serve a complaint for 26 months after a demand for service thereof was unreasonable and unjustified (see McKay v. Smithtown Gen. Hosp., 42 A.D.2d 594; Beckham v. Lefferts Gen. Hosp., 36 A.D.2d 726). Therefore, it was an improvident exercise of Special Term's discretion to condition the grant of defendants' motion on plaintiffs' continuing failure to serve a complaint within the 20-day period designated in the order under review. The motion should have been granted unconditionally. Hopkins, Acting P.J., Latham, Cohalan and Munder, JJ., concur.