Opinion
April 15, 1977
Appeal from the Monroe Supreme Court.
Present — Marsh, P.J., Cardamone, Dillon, Goldman and Witmer, JJ.
Order unanimously reversed, without costs, motion granted and action dismissed. Memorandum: Under the circumstances demonstrated in the record we find that Special Term's denial of defendant's motion to dismiss plaintiff's cause of action pursuant to CPLR 3012 (subd [b]) was an abuse of its discretion. While plaintiff asserts that settlement negotiations were carried on with defendant's original counsel following the notice of appearance and demand for a complaint on August 30, 1973, no showing is made as to the extent of such negotiations or as to how long they continued. In any event, no allegation is made of continuing negotiations following substitution of defendant's counsel and the service of a second notice of appearance and demand for a complaint on April 18, 1975. The only reason offered for the delay in serving the complaint from April 18, 1975 until March 12, 1976 immediately preceding the adjourned return date of defendant's motion to dismiss is that sometime in June, 1975 plaintiff's counsel moved his office and at that time misplaced the case file. Such explanation relating to law office failure is insufficient to excuse plaintiff's prolonged delay in serving a complaint. Not only has the plaintiff failed to meet the "heavy burden of explanation" of the delay which is cast upon him (Solomon v Perkins, 52 A.D.2d 753, app dsmd 39 N.Y.2d 922; Hamilton v Dudley, 27 A.D.2d 701), he also has made no showing of evidentiary facts establishing that he has a viable cause of action (see Rabetoy v Atkinson, 49 A.D.2d 691, app dsmd 37 N.Y.2d 803; Coons v After Dark in Rochester, 56 A.D.2d 738; Sortino v Fisher, 20 A.D.2d 25).