Opinion
Submitted March 30, 1979
Decided May 10, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOAN MARIE DURANTE, J.
Walter G. Evans and Eugene Guarneri for appellants.
Francis J. Donovan for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Although plaintiffs satisfied the requirement that an affidavit of merit be submitted on an application to be relieved of their default, they offer no valid legal excuse for their delay. A summons was served just one week before the expiration of the three-year Statute of Limitations. Three and one-half months later defendants served a demand for a complaint. Plaintiffs ignored this demand for over 10 months and it was only when they were served with the present motion to dismiss that they were aroused to serve their pleading. As excuse for the default plaintiffs' attorneys advance only the assertion that they are engaged mostly in defense practice and that "this plaintiff's file was inadvertently not timely diaried for a complaint".
The absence of any reasonable excuse for plaintiffs' delay is determinative; there is no requisite that prejudice be shown before a motion to dismiss is granted in a case of this nature. Accordingly we cannot say that it was error to grant defendant's motion to dismiss the action as a matter of law.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur in a memorandum.
Order affirmed.