Opinion
November 24, 1964
Order, entered on April 2, 1964, vacating an order dated November 21, 1963 which dismissed the action for failure to timely serve the complaint, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $30 costs and disbursements to appellant, and the motion to vacate denied. This action seeking a recovery of $2,500,000 for libel was commenced by service of a summons on February 5, 1963. Defendant appeared on February 25, 1963 and demanded a complaint. Eight months having elapsed after such demand and no complaint having been served, defendant on October 24, 1963 moved to dismiss the action. That motion was granted by order dated November 21, 1963 with leave to move to vacate. The instant motion to vacate the dismissal was not made until March 13, 1964. The excuse offered for the failure to serve the complaint, i.e., that the plaintiff was unable to confer with counsel by reason of the former's business commitments, is inadequate. Not only does the explanation fail to excuse the delay prior to the dismissal of the action but it fails to show any creditable reason for the delay of almost four months in making the instant motion to vacate. In addition, there has been no adequate demonstration of merit. (See Keogh v. New York Post Corp., 22 A.D.2d 659.)
Concur — Botein, P.J., Rabin, Valente, Stevens and Eager, JJ.