Opinion
February 5, 1979
In a negligence action to recover damages for personal injuries, defendant Shell Oil Co. appeals from an order of the Supreme Court, Kings County, entered June 30, 1978, which, inter alia, (1) denied its motion to dismiss plaintiffs' action for failure to timely serve a complaint, and (2) granted plaintiffs' cross motion, inter alia, to compel it to answer the complaint. Order reversed, on the law, without costs or disbursements, motion granted, and cross motion denied. The existence of a meritorious cause of action is insufficient to overcome the plaintiffs' failure to serve a complaint upon the appellant until 33 months after receipt of its demand for same, in the absence of any excuse for such delay. The absence of demonstrated prejudice to the appellant, and the absence of demonstrable intent to abandon the case on the part of plaintiffs are relevant considerations, but are not dispositive. Therefore, the denial of appellant's motion to dismiss the action pursuant to CPLR 3012 (subd [b]) constituted an abuse of discretion. O'Connor, J.P., Rabin, Gulotta and Shapiro, JJ., concur.