Opinion
January 23, 1973
Order, Supreme Court, Bronx County, entered on February 25, 1972, insofar as it denied defendant, Glissando Enterprises of New Jersey's cross motion to dismiss this action because of plaintiff's failure to serve a timely complaint, unanimously reversed, on the law and on the facts, without costs and without disbursements, cross motion granted and the complaint dismissed as to defendant-appellant. Plaintiff failed to come forward at Special Term with any excuse whatsoever for his failure to serve a complaint until approximately nine months after the demand therefor, at which time it was rejected by defendant. In addition no affidavit of merits was supplied to the court ( Schwartz v. National Fire Ins. Co. of Hartford, 25 A.D.2d 727). Plaintiff's claim that defendant improperly rejected his untimely complaint, rather than moving for dismissal prior thereto, is without merit. "The duty of prosecuting the action rests on the one who brings it, not on the one who defends it [citing cases]". ( Sortino v. Fisher, 20 A.D.2d 25, 30.)
Concur — McGivern, J.P., Murphy, Steuer, Tilzer and Capozzoli, JJ.