Opinion
March 4, 1974
In a medical malpractice action to recover damages for personal injuries, defendant Deepdale General Hospital appeals from an order of the Supreme Court, Queens County, entered August 14, 1973, which denied its motion to dismiss the action for failure timely to serve a complaint. Order reversed, in the exercise of discretion, without costs, and motion granted. In the absence of any showing of excuse for failure timely to serve a complaint after demand therefor, and of any affidavit showing that the action has merit, Special Term should have unconditionally granted the motion to dismiss the action ( Melfi v. Nash, 40 A.D.2d 1017). Gulotta, P.J., Hopkins, Latham and Brennan, JJ., concur.