Opinion
March 8, 1971
In a medical malpractice action to recover damages for wrongful death and conscious pain and suffering, defendant Rosenthal appeals from an order of the Supreme Court, Queens County, dated June 24, 1968 and entered in Kings County, which (1) denied his motion to dismiss the action for failure to serve a complaint and (2) granted plaintiff's cross application to compel appellant to accept the complaint. Order reversed, with $10 costs and disbursements; appellant's motion granted and complaint dismissed as to appellant, with leave to plaintiff to move at Special Term upon proper papers to vacate the dismissal, if plaintiff be so advised; and plaintiff's cross application denied. In the absence of proof, made under oath by one with knowledge, that the action has merit and that there was a valid excuse for the failure to serve the complaint, Special Term should have granted appellant's motion to dismiss the action. Upon a motion of this character, proper procedure additionally required (1) a motion by plaintiff to be relieved of his default and (2) submission of a copy of the proposed complaint ( Powell v. Becker Truck Renting Corp., 20 A.D.2d 573). Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.