Opinion
November 20, 1961
In an action commenced by the service of a summons without a complaint, defendants Lal Construction Corp., Arnold J. La Rocca, Anna La Rocca, Leonard H. Rappaport and Helen Rappaport appeal from an order of the Supreme Court, Westchester County, dated May 8, 1961, and from the resettled order of said court, dated June 16, 1961, granting plaintiff's motion to vacate a previous order of said court, dated March 1, 1961, dismissing the action for failure of the plaintiff to serve its complaint. Appeal from the order of May 8, 1961, dismissed, without costs. This order was superseded by the resettled order of June 16, 1961. Order of June 16, 1961, reversed, with $10 costs and disbursements to the said defendants (appellants) and plaintiff's motion to vacate the prior order of dismissal denied, with leave to plaintiff to renew upon proper papers, if so advised. The facts stated in the moving papers are insufficient to show that plaintiff's default was due to mistake, inadvertence, surprise or excusable neglect; nor is there any factual showing that plaintiff has a meritorious cause of action (cf. Bennett v. Dorothy Lamour, Inc., 13 A.D.2d 816; Heller v. Ward, 10 A.D.2d 633). Furthermore, no proposed complaint was submitted alleging a valid cause of action (cf. 418 Trading Corp. v. Pelliccio, 13 A.D.2d 804). Upon this record, it was an improvident exercise of discretion to grant the motion. Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.