Decided March 25, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH JIUDICE, J.
David L. Posner for appellant.
Mark Cash for respondents.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order affirmed, with costs. It was error as a matter of law to have denied the motion to dismiss where plaintiff deliberately chose not to serve the complaint within the prescribed time (see Barasch v Micucci, 49 N.Y.2d 594).
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.