Opinion
December 14, 1979
Appeal from the Erie Supreme Court.
Present — Cardamone, J.P., Simons, Schnepp, Doerr and Witmer, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: To resist a motion to dismiss for failure to serve a complaint after a demand plaintiff must (1) show that the delay is excusable and (2) submit proof by one having knowledge that the cause of action is meritorious (Dobbins v. County of Erie, 65 A.D.2d 934, 935; Allen v. Berton, 55 A.D.2d 1049). Plaintiff has failed to satisfy either of these requirements and the court abused its discretion in granting reargument and vacating its original order dismissing the action.