Williams v. Howard , 75 A.D.2d 894 ( 1980 )

In a negligence action to recover damages for personal injuries, defendant Mark Isidore, appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated October 2, 1979, as (1) denied his motion to dismiss the action for failure to timely serve a complaint; (2) granted plaintiff’s cross motion, and (3) required Isidore to accept the complaint and to serve an answer thereto. Order reversed insofar as appealed from, on the law, without costs or disbursements, defendant Isidore’s motion is granted dismissing the action as to him and the plaintiff’s cross motion is denied. In view of plaintiff’s delay of 20 months in complying with defendant Isidore’s demand for service of a complaint, coupled with her further delay of approximately 28 months in applying to be relieved of her default after receipt of notice of rejection for untimely service and the inadequacy of the excuse offered, it was an abuse of discretion to deny Isidore’s motion to dismiss the action pursuant to CPLR 3012 (subd [b]), to grant plaintiff’s cross motion and to require Isidore to accept service of the complaint and to serve an answer thereto (see Verre v Rosas, 47 NY2d 795; Barasch v Micucci, 49 NY2d 594; Nobisso v Freed, 74 AD2d 820; Berland v Fine, 63 AD2d 642). Damiani, J. P., Lazer, Gibbons and Martuscello, JJ., concur.