Merchandising Presentation, Inc. v. Blumenfeld

Fein, J. P., and Ross, J.,

dissent in a memorandum by Ross, J., as follows: I dissent and would sustain the denial of defendant-appellant’s motion to *524dismiss the action for failure to timely serve a complaint. The action was commenced on or about May 20, 1977, by service of a summons alone upon the defendant. After demand, plaintiff served a complaint on February 14, 1979, which was rejected. A motion to dismiss for failure to serve a complaint is directed, under CPLR 3012 (subd [b]) to the discretion of the court (Orloff Towers v Vermilya-Brown Co., 50 AD2d 740). Under the circumstances…