Opinion
Decided January 15, 1981
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ALFRED D. LERNER, J.
Douglas A. Cooper and Jerome Cooper for appellant.
Peter J. McHugh for respondents.
On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in dismissing the complaint pursuant to CPLR 3012 (subd [b]). Indeed, as we held in Barasch v Micucci ( 49 N.Y.2d 594, 600-601), it would have constituted an abuse of discretion to have failed to dismiss.
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.