Sanders v. Van Dome Management — 191 A.D.2d 630

Majority

p. 630

Bryne Sanders et al., Respondents, v Van Dome Management, Appellant.

[595 NYS2d 113]

—In a negligence action to recover for damages to property, the defendant Van Dome Management appeals from an order of the Supreme Court, Kings County (Garry, J.), dated April 2, 1991, which granted its motion to dismiss the action pursuant to CPLR 3012 (b)

p. 631

only on condition that the attorney for the plaintiffs serve the complaint on the defendant and pay $250 within 30 days "of the service of the order”.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion to dismiss the action is granted unconditionally.

The plaintiffs failed to set forth a reasonable excuse for their delay in serving a complaint pursuant to the defendant’s demand (see, CPLR 3012 [b]). Furthermore, the plaintiffs failed to address the merits of the case. It was thus error as a matter of law to grant the motion conditionally (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904 ; Stolowitz v Mount Sinai Hosp., 60 NY2d 685 ; Buono v Makita U.S.A., 175 AD2d 196 ). Mangano, P. J., Sullivan, O’Brien, Ritter and Pizzuto, JJ., concur.

Cases cited

Kel Management Corp. v. Rogers & Wells 64 NY2d 904 N.Y. 1985-02-07 p. 631
Stolowitz v. Mount Sinai Hospital 60 NY2d 685 N.Y. 1983-09-29 p. 631
Buono v. Makita U.S.A., Inc. 175 AD2d 196 N.Y. App. Div. 1991-07-15 p. 631