Tutora v. Schirripa

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Murphy, J.), entered September 24, 2002, which granted the defendant’s motion pursuant to CPLR 3012 (b) to dismiss the action for failure to timely serve a complaint, and denied his cross motion to enlarge his time to serve a complaint.

*350Ordered that the order is affirmed, with costs.

It is well settled that to avoid dismissal for failure to serve a complaint after a demand therefor has been served pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a…