
    Miriam Schwartz, Respondent, v. Samuel Luks et al., Appellants.
   Order, Supreme Court, New York County, entered June 28, 1973, denying the defendants’ motion for summary judgment, unanimously reversed, on the law, and the motion granted. Appellants shall recover of respondent $60 costs and disbursements of this appeal. This malpractice action (for negligent dental treatment on or about January through April, 1968) was initiated by service of summons without complaint on defendant Luks on March 23, 1971 and on defendant Rakower on April 1, 1971. Defendants served a demand for the complaint in May, 1971. In October of 1972, plaintiff’s attempt to serve' the complaint was rejected by defendants who then moved for an order dismissing the complaint pursuant to CPLR 3012 (subd. [b]). This motion was granted with the observation that the delay of some 18 months from the date of demand being inordinate and the excuse proffered for the delay being insufficiently demonstrated, dismissal of the action was warranted because of lack of prosecution. After the order dismissing the action was entered on January 8, 1973, plaintiff commenced a second action for the same relief. Issue was joined and a defense of statute of limitations interposed. Defendants’ motion for summary judgment dismissing the action as time-barred was denied by the Supreme Court in reliance on CPLR 205. This was error. CPLR 205 (subd. [a]) provides: “If an action is timely commenced and is terminated in any other manner' than by * * * a dismissal of the complaint for neglect to prosecute the action " * * the plaintiff * * * may commence a new action upon the same cause of action within six months after the termination”. Dnder the circumstances herein, it is patent that the prior dismissal of the action constituted a dismissal for failure to prosecute within the meaning of CPLR 205 (Wright v. Farlin, 42 A D 2d 141). Concur — Markewieh, J. P., Kupferman, Lupiano, Steuer and. Capozzoli, JJ.  