Opinion
March 8, 1996
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Pine, J.P., Lawton, Wesley, Balio and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and action dismissed. Memorandum: Supreme Court improvidently exercised its discretion in denying defendants' motion to dismiss the action for failure to serve a complaint. Plaintiff commenced this action for false imprisonment in May 1994 by service of a summons with notice. Defendants' attorney served a notice of appearance and demand for complaint dated June 15, 1994. More than two months later defendants moved to dismiss the action pursuant to CPLR 3012 (b). Plaintiff did not serve a written response to the motion, but on its return date her attorney appeared in court and served an unverified complaint. "Once the time to serve a complaint has expired, a plaintiff must provide the court with an affidavit of merit or a verified complaint in lieu thereof" ( A J Concrete Corp. v Arker, 54 N.Y.2d 870, 872; see, Brooks v Inn at Saratoga Assn., 188 A.D.2d 921). Here, plaintiff failed to provide either an affidavit of merit or a verified complaint. Moreover, plaintiff did not show that the two-month delay in serving the complaint was excusable ( see, Fantauzzo v Steimer, 193 A.D.2d 1125; Iafallo v Dolan, 162 A.D.2d 965). Thus, defendants' motion should have been granted.