Opinion
February 4, 1993
Appeal from the Supreme Court, Otsego County (Ingraham, J.).
Seven months after defendant served a notice of appearance upon plaintiff and demanded service of the complaint, defendant moved to dismiss the action pursuant to CPLR 3012 (b) for failure to timely serve the complaint. Plaintiff never served defendant with any papers in opposition to the motion. Instead, plaintiff merely served defendant with a complaint days before the return date of the motion and nine months after defendant's demand therefor. Defendant rejected service of the complaint as untimely.
For plaintiff to avoid dismissal of his action for failure to timely serve a complaint, he must demonstrate a reasonable excuse for his delay and establish the meritorious nature of his claim (see, Adams v Agrawal, 187 A.D.2d 886, 887; Innerarity v County of Westchester, 144 A.D.2d 645). On this record, we find that plaintiff has failed in all respects to meet his burden (see, Ferrara v Guardino, 164 A.D.2d 932, 933). As such, Supreme Court erred, as a matter of law, in not granting defendant's motion to dismiss without condition (see, Kel Mgt. Corp. v Rogers Wells, 64 N.Y.2d 904, 905; Stolowitz v Mount Sinai Hosp., 60 N.Y.2d 685, 686).
Yesawich Jr., J.P., Crew III, Mahoney and Harvey, JJ., concur. Ordered that the order is modified, on the law, with costs, by reversing so much thereof as imposed conditions on the dismissal of the action, and, as so modified, affirmed.