Opinion
October 21, 1971
Appeal from an order of the Supreme Court at Special Term, entered in Schenectady County, which granted a motion to dismiss the actions conditionally unless respondent served complaints within 10 days. The actions were commenced on September 1, 1967 by service of a summons on the Superintendent of Insurance. The appellants appeared on October 2, 1967 and demanded copies of the complaints. On March 5, 1970 appellants moved to dismiss the actions for failure to serve a complaint pursuant to CPLR 3012, (subd. [b]). Respondent did not answer the motions or appear in opposition to them. Under these circumstances, the court's grant of the order to dismiss conditionally was an abuse of discretion. ( Harris v. Hampton Hotel Corp., 36 A.D.2d 999.) Order modified, on the law and the facts, by striking from the decretal paragraph so much thereof as grants a 10-day extension of time to serve complaints, and, as so modified, affirmed, without costs. Herlihy, P.J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.