Opinion
November 4, 1963
In a negligence action, the defendant appeals from an order of the Supreme Court, Nassau County, dated June 24, 1963, which granted plaintiff's motion: (a) to vacate a prior order of said court dismissing the action for lack of prosecution and failure to serve a complaint; and (b) to permit the plaintiff to serve its complaint. Order reversed, without costs, and motion denied. On this record, we believe the Special Term improvidently exercised its discretion in vacating the prior dismissal of the action, since: (1) plaintiff did not offer an acceptable excuse for the 30-month delay in serving a complaint; and (2) defendant established, prima facie, prejudice to it by reason of such delay. Beldock, P.J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.