
    Alfredo Colon et al., Respondents, v. City of New York, Appellant.
   In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated October 8, 1971, which granted plaintiffs’ motion to compel defendant to accept a complaint and denied defendant’s cross motion to dismiss the action for failure timely to serve a complaint. Order reversed, in the exercise of discretion, with $20 costs and disbursements; plaintiffs’ motion denied; and defendant’s cross motion granted. In our opinion, the excuse offered by respondents for the delay of 22 months in prosecuting the action was improbable and inadequate. That and the failure to submit an affidavit of merits required dismissal of the complaint (cf. Fromberg v. 261 Broadway Estates, 38 A D 2d 752; Beckham v. Lefferts Gen. Hosp., 36 A D 2d 726; Carroll v. Estron Realty Corp., 31 A D 2d 903; Bradley v. City of New York, 24 A D 2d 490). Latham, Acting P. J., Christ and Brennan, JJ., concur; Shapiro and Benjamin, JJ., dissent and vote to affirm.  