Opinion
August 5, 1999.
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
Given this Court's October 14, 1997 order ( 243 A.D.2d 307) and the November 14, 1997 letter from counsel for plaintiff to counsel for defendants, there is no basis for a finding that plaintiff was stayed, either explicitly or implicitly, from completing service by timely filing the requisite returns of service. Thus, pursuant to the provisions of CPLR former 306-b (a), this action "shall be deemed dismissed as to the non-appearing part[ies] with respect to whom no proof of service has been filed, without prejudice and without costs." Were we not dismissing the complaint against all defendants for the foregoing reason, we would still dismiss it as to defendants Gloria Dansker and Susan Bogaty for failure to state a cause of action, the complaint being devoid of any allegations which would indicate culpable conduct on their part.
Concur — Rosenberger, J. P., Williams, Andrias, Saxe and Buckley, JJ.