Opinion
June 21, 1965
In a negligence action to recover damages for personal injury sustained as a result of falling on a defective sidewalk, defendant appeals from an order of the Supreme Court, Kings County, entered May 11, 1964, which granted plaintiff's motion to extend her time to serve her complaint, directed defendant to accept service thereof, and denied defendant's cross motion to dismiss the action for lack of prosecution pursuant to statute (CPLR 3012, subd. [b], 3216). Order reversed, without costs; plaintiff's motion denied; defendant's cross motion to dismiss, granted; and action dismissed, without costs. The only reason offered by plaintiff for her failure to serve the complaint for more than two and one-half years following the service of the summons was that her attorney had misplaced the file. Such excuse is inadequate to excuse the delay ( Greenwald v. Zyvith, 23 A.D.2d 201; Burke v. City of New York, 18 A.D.2d 898, and cases cited therein). Moreover, we are of the opinion that the failure to serve a complaint for so long a period of time without a justifiable excuse is tantamount to an abandonment of the action. Beldock, P.J., Christ, Brennan, Hill and Rabin, JJ., concur.