
    James Postell, Respondent, v Sam Zirulnik et al., Appellants.
   — In an automobile negligence action, defendants appeal from so much of an order of the Supreme Court, Westchester County, entered April 18, 1978, as conditioned its grant of defendants’ unopposed motion to dismiss the action for plaintiff’s failure to timely serve a complaint, upon plaintiffs failure to serve a complaint within a stated time. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and the motion is granted unconditionally. More than 73 months elapsed between the time of service of the notice of appearance and demand for the complaint and the making of the motion to dismiss. In the absence of opposition to the motion, an excuse for the delay and an affidavit of merits, the failure to dismiss the action unconditionally was an improvident exercise of discretion (see Marks v Levine, 45 AD2d 715). Hopkins, J. P., Lazer, Rabin and Gulotta, JJ., concur.  