Opinion
November 23, 1970
In a negligence action to recover damages for personal injury, defendants appeal from an order of the Supreme Court, Queens County, entered August 11, 1970, which denied their motion to dismiss the action for lack of prosecution (CPLR 3012, subd. [b]) and granted plaintiff's cross motion to compel them to accept service of the complaint. Order reversed, on the law and the facts, without costs; defendants' motion granted: and plaintiff's cross motion denied. The motion to dismiss the action was made after about 35 months had elapsed since a demand was made for service of a copy of the complaint. The complaint was served after the motion to dismiss was made and the only reason offered by plaintiff for his failure timely to serve the complaint was that his attorney had misplaced the file of the case during office renovations. Such excuse is inadequate to justify the delay ( Gerson v. Finkelstein, 29 A.D.2d 552; Francisco v. Walgreen Eastern Co., 25 A.D.2d 681; Bradley v. City of New York, 24 A.D.2d 490). Moreover, we are of the opinion that in view of the protracted delay herein the fact that defendants may not have been prejudiced is immaterial ( Sinder v. 345 Cypress Realty Corp., 34 A.D.2d 777). Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.