Opinion
October 27, 1994
Appeal from the Supreme Court, Warren County (Dier, J.).
Plaintiffs commenced this action by service of a summons with notice on December 10, 1992. Defendant served a notice of appearance and demand for a complaint on January 7, 1993. On November 23, 1993, defendant moved to dismiss the action pursuant to CPLR 3012 (b) for failure to serve a complaint. Supreme Court denied the motion and defendant appeals.
We reverse. In view of the protracted delay in service of the complaint, in order to avoid dismissal of the action, it was incumbent upon plaintiffs to establish both a reasonable excuse for the delay and a meritorious cause of action (see, Kel Mgt. Corp. v. Rogers Wells, 64 N.Y.2d 904, 905; Young v. Bassett Hosp., 190 A.D.2d 905). In our view, plaintiffs have failed to competently establish either element. A letter from defendant's claims adjuster indicating that he was conducting an investigation into the matter was not equivalent to an agreement to postpone service of the complaint and by no means justified plaintiffs' inaction. Further, although the affidavit of plaintiffs' counsel and annexed medical records competently established that plaintiff Joan Honohan sustained injuries on or about September 18, 1992, no first-hand evidence was presented to establish that defendant had any part therein (see, Marion v Notre Dame Academy High School, 133 A.D.2d 614).
Crew III, White and Casey, JJ., concur. Ordered that the order is reversed, on the law, without costs, motion granted and action dismissed.