Opinion
September 22, 1980
In an action to recover for property damage resulting from a vehicular collision, defendants Frank Connor and Connor Trucking, Inc., appeal from an order of the Supreme Court, Queens County, dated February 26, 1980, which denied their motion to dismiss the action for plaintiff's failure to serve a timely complaint. Order reversed, on the law, with $50 costs and disbursements, appellants' motion granted and action dismissed. Plaintiff has failed to satisfy its burden of showing that the delay in the prosecution of its action is excusable and that its claim is meritorious (see Barasch v. Micucci, 49 N.Y.2d 594). Furthermore, the acceptance of plaintiff's complaint when served in accordance with the order herein appealed from did not constitute a waiver of appellants' right to appeal from such order (see Warren v Baker, 57 A.D.2d 709, 710). Hopkins, J.P., Mangano and O'Connor, JJ., concur; Weinstein, J., dissents and votes to affirm the order.