Opinion
March 21, 1988
Appeal from the Supreme Court, Queens County (Sacks, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, the defendants' motion is granted, the plaintiff's cross motion is denied, and the action is dismissed.
In order to defeat a motion to dismiss for failure to serve a complaint, a plaintiff must demonstrate a reasonable excuse for the delay and submit an affidavit of merit, containing evidentiary facts, indicating that he has a meritorious cause of action (see, Kel Mgt. Corp. v. Rogers Wells, 64 N.Y.2d 904; Kirschenbaum v. Schreiber, 91 A.D.2d 649). The affidavit of the plaintiff's attorney did not set forth a reasonable excuse for the delay in serving the complaint and the unverified and conclusory complaint submitted with the cross motion was not, as a matter of law, a sufficient affidavit of merit (see, Reilly v Lopez Publs., 99 A.D.2d 1006; Oversby v. Linde Div., 121 A.D.2d 373). Under these circumstances, the Supreme Court erred, as a matter of law, in denying the defendants' motion to dismiss the action (Kel Mgt. Corp. v. Rogers Wells, supra), and in granting the plaintiff's cross motion. Mangano, J.P., Bracken, Kooper and Spatt, JJ., concur.