Gilmartin v. Northeast Bronx Hillside Corp.

—Order, Supreme Court, Bronx County, entered December 12, 1978, which conditionally granted defendant’s motion to dismiss this action for failure to serve a complaint, "unless plaintiff serves a complaint upon defendant within 20 days after service of a copy of this order with notice of entry”, modified, on the law and the facts, to the extent of striking the condition set forth in the order, and otherwise affirmed, with costs to defendant-appellant Northeast Bronx Hillside Corp. On June 9, 1977, a summons was served commencing this action. On July 8, 1977, counsel for defendant demanded that plaintiff serve his complaint and after a lapse in excess of one year, the defendant on November 8, 1978, moved to dismiss for failure to serve a complaint. Although plaintiff defaulted, the court nevertheless granted the motion conditionally. On January 5, 1979, plaintiff served his complaint. The delay in serving the complaint was substantial, no valid reason had been presented for such delay, and there was no showing that the case had merit. There was no adequate basis for the exercise of judicial discretion in plaintiff’s favor on the part of Special Term. (CPLR 3012, subd [b]; Rascoe v Clark, 65 AD2d 876.) Concur—Fein, J. P., Sullivan, Lane, Lupiano and Ross, JJ.