
    Frank L. Reinhardt et al., Respondents, v Frank J. Biegas et al., Appellants.
   Order unanimously affirmed, without costs. Memorandum: Defendants appeal from an order denying their motion to dismiss for failure to serve a complaint within 20 days of their demand (CPLR 3012, subd [b]). Since there is obvious merit to the action and the excuse for the delay is satisfactory, we find no abuse of discretion by the court in denying defendants’ motion to dismiss. With respect to the merit of the action, defendants admit that in 1963 they mortgaged their real property to plaintiffs for $15,000, that they have made no payment on the mortgage since 1966 and that the mortgage is in default. They allege no defense to the action. By way of excusing the delay, plaintiffs allege that after serving a summons they withheld service of a complaint indefinitely at the request of defendants’ former counsel, no longer a practicing attorney, because one of the defendants was ill. The attorney represented to them that defendants needed time to obtain refinancing. Inasmuch as plaintiffs’ mortgage was subordinate to a substantial first mortgage on the premises which was not in default, plaintiffs agreed not to press the matter. They continued to negotiate with defendants’ attorney and they were approached for settlement discussions by a representative of defendants only a short time before this motion was made. Under these circumstances, the court properly denied the motion to dismiss. (Appeal from order of Genesee County Court—dismiss complaint.) Present—Cardamone, J. P., Simons, Hancock, Denman and Witmer, JJ.  