Opinion
March 5, 1987
Appeal from the Supreme Court, Schenectady County (Walsh, Jr., J.).
Plaintiff commenced this action by service of a summons with notice in November 1985. Defendant served a demand for a complaint and agreed to extend the time for serving the complaint for 30 days, to March 10, 1986. Plaintiff failed to serve a complaint and, in May 1986, defendant moved to dismiss the action pursuant to CPLR 3012 (b). Supreme Court granted the motion only upon the condition that plaintiff fail to serve a complaint within 30 days. Defendant appeals.
It is well settled that the failure to timely serve a complaint will result in dismissal unless it is shown that there was both a justifiable excuse and a meritorious cause of action (Egan v Federated Dept. Stores, 108 A.D.2d 718; Wurzburger v. Smith Fuel Co., 101 A.D.2d 620). Here, plaintiff failed to satisfy either of these requirements. Indeed, plaintiff did not submit any papers in opposition to defendant's motion to dismiss. Under these circumstances, it was error as a matter of law not to grant the motion to dismiss without condition (see, Kel Mgt. Corp. v Rogers Wells, 64 N.Y.2d 904; Stolowitz v. Mount Sinai Hosp., 60 N.Y.2d 685; Marks v. Levine, 45 A.D.2d 715).
Order modified, on the law, without costs, by striking any conditions attached to the granting of defendant's motion, and, as so modified, affirmed. Casey, J.P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.