Berland v. Fine

¶1In a medical malpractice action, defendant appeals from an order of the Supreme Court, Kings County, dated September 23, 1977, which denied his motion to dismiss the action for failure to serve a complaint (see CPLR 3012, subd [b]). Order reversed, on the law and as a matter of discretion in the interest of justice, without costs or disbursements, and motion granted. In the light of the delay of more than 30 months in complying with defendant-appellant’s demand for the service of a complaint, and the inadequate excuse offered, it was an abuse of discretion to deny the motion to dismiss the action pursuant to CPLR 3012 (subd [b]). Hopkins, J. P., Martuscello, Shapiro and O’Connor, JJ., concur.