Opinion
February 25, 1975
Orders, Supreme Court, New York County, entered on July 2, 1974, unanimously reserved, on the law and in the exercise of discretion, without costs and without disbursements, plaintiff's motion denied, and defendants-appellants' motion to dismiss the action for failure to serve a complaint granted, and the action dismissed and severed as to defendants-appellants. The accident resulting in the decedent's death occurred in 1962. Action was commenced by service of a summons without complaint in 1964, and a complaint was demanded. The verified complaint was not served until 10 years later, in 1974. It was then rejected as untimely, although one defendant retained it for approximately three weeks, and another for some two and one-half months before rejecting it. The rationale of the court at Special Term was based on the defendants' failure to serve a 45-day notice pursuant to CPLR 3216. However, this provision does not apply until issue has been joined (subd. [b], par. [1]). No valid excuses are offered to explain the delay in serving the complaint over this extended period, and the motion to compel the defendants to accept the complaint should have been denied, and the motion to dismiss for failure to serve a complaint should have been granted. (CPLR 3012, subd. [b]; Hellner v. Mannow, 41 A.D.2d 525.)
Concur — Stevens, J.P., Kupferman, Murphy, Lane and Lynch, JJ.