Opinion
June 18, 1973
In a medical malpractice action to recover damages for personal injuries, defendant Fox appeals from an order of the Supreme Court, Suffolk County, dated June 13, 1972, which (1) denied motions by him and by defendant Plastaras to dismiss the action for failure to prosecute and (2) granted plaintiff's cross motion to permit plaintiff to serve a complaint. Order reversed as to defendant Fox, without costs; said defendant's motion granted; and plaintiff's cross motion denied as to said defendant. In our opinion, plaintiff failed to establish a reasonable excuse for his delay and did not provide the court at Special Term with an affidavit of merits ( Keating v. Smith, 20 A.D.2d 141; Sortino v. Fisher, 20 A.D.2d 25). Further, where a defendant rejects what he considers to be an untimely service of the complaint, the service of the complaint alone will not render the motion to dismiss the action academic ( Gerson v. Finkelstein, 29 A.D.2d 552). Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.