Opinion
April 22, 1974
In a negligence action to recover damages for personal injuries sustained by plaintiff Mary Simons and for medical expenses, etc., incurred by her husband, defendant appeals from so much of an order of the Supreme Court, Suffolk County, dated September 11, 1973, as conditionally denied its motion, under CPLR 3012 (subd. [b]), to dismiss the action for failure to timely serve a complaint. Order reversed insofar as appealed from, on the law and the facts, with $20 costs and disbursements, and, as otherwise provided in the order, the motion is granted unconditionally. Plaintiffs failed to serve a complaint for about 15 months after a written demand therefor by defendant. Special Term should not have permitted plaintiffs to serve their complaint in the absence of a successful motion by them to be relieved of their default ( Beckham v. Lefferts Gen. Hosp., 36 A.D.2d 726). They also failed to submit a proper affidavit of merit in opposition to the motion ( Powell v. Becker Truck Renting Corp., 20 A.D.2d 573) and the excuse of law office failure is not sufficient to excuse this delay ( Pellerin v. Groveville Corp., 34 A.D.2d 650). Finally, defendant was not required to show that it was prejudiced by the delay in order to obtain a dismissal of the action (cf. Lavigne v. Allen, 36 A.D.2d 981). Hopkins, Acting P.J., Cohalan, Christ, Brennan and Munder, JJ., concur.