Opinion
May 28, 1993
Appeal from the Supreme Court, Monroe County, Calvaruso, J.
Present — Pine, J.P., Balio, Lawton, Fallon and Davis, JJ.
Order insofar as appealed from unanimously reversed on the law with costs, motion denied, cross motion granted and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: The court erred in granting plaintiffs' motion to direct defendant to accept service of their complaint and in denying defendant's cross motion to dismiss the complaint and for sanctions. In opposing defendant's cross motion pursuant to CPLR 3012 (b), plaintiffs failed to meet their burden of showing that their delay in serving the complaint was excusable and that their cause of action was meritorious (see, Iafallo v Dolan, 162 A.D.2d 965; Dobbins v County of Erie, 65 A.D.2d 934, 935). Furthermore, defendant is entitled to sanctions based on the test for frivolousness set forth in CPLR 8303-a (c) (see, e.g., Mitchell v Herald Co., 137 A.D.2d 213, 219-220, appeal dismissed 72 N.Y.2d 952). We therefore remit the matter to Supreme Court to determine the amount of costs and attorney's fees and whether the sanctions should be imposed against plaintiffs, their attorney, or both (CPLR 8303-a [a], [b]; Mitchell v Herald Co., supra, at 220) and for an order directing that judgment be entered accordingly.