
    Thomas W. Kennedy, Respondent, v Elsie I. Kennedy, Appellant.
   In a divorce action, the defendant appeals from stated portions of an order of the Supreme Court, Nassau County, entered May 12, 1976, which, inter alia, (1) denied her motion to stay the plaintiff from prosecuting the action herein and (2) directed that she answer the plaintiff’s complaint. Order modified, on the law, by deleting therefrom the provisions which deemed the complaint served and directed the defendant to serve an answer. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to the defendant and without prejudice to an application by (1) the defendant for dismissal of the action for failure to serve a timely complaint and (2) the plaintiff to vacate his default. It was an improper exercise of discretion to allow the plaintiff, who failed to serve a complaint for approximately 23 months after written demand therefor (CPLR 3012, subd [b]), to serve a complaint in the absence of a successful motion by him to be relieved of his default (Gelch v Malrich Realty Corp., 47 AD2d 644; Simons v Sandford Plaza, 44 AD2d 710; Beckham v Lefferts Gen. Hosp., 36 AD2d 726). Latham, J. P., Damiani, Margett and Hawkins, JJ., concur.  