Opinion
September 28, 1970
In a negligence action to recover damages for personal injury, defendant Morganthau-Seixas Company, Inc. appeals from an order of the Supreme Court, Nassau County, dated December 22, 1969, which conditionally denied said defendant's motion, pursuant to CPLR 3012 (subd. [b]), to dismiss the action for failure to serve a complaint. Order reversed, on the law and the facts, without costs; motion granted; and action dismissed, without costs. Under the circumstances disclosed by the record, the denial of the motion to dismiss the action was an improvident exercise of discretion by the Special Term. Rabin, Acting P.J., Hopkins, Munder, Martuscello and Benjamin, JJ., concur.