
    Mary H. Williams, Respondent, v John E. Cunningham, Jr., Appellant.
   Appeal from an order of the Supreme Court at Special Term, entered June 22, 1977 in Schenectady County, which denied defendant’s motion to dismiss the action for failure to serve a complaint. The record discloses that while originally the defendant’s counsel requested a delay for the purpose of timely entering an appearance, the plaintiff after receiving such appearance and a demand for a complaint failed to serve a complaint or take any steps to prosecute the action until after the motion herein was made pursuant to CPLR 3012 (subd [b]) to dismiss the action. The motion herein is discretionary and the affidavits on behalf of plaintiff do not establish that the action has any merit and, in fact, they tend to establish that the plaintiff has no cause for action as against the defendant. Under such circumstances, it was an abuse of discretion to deny the motion and prolong the continuance of this action. Order reversed, on the law and the facts, without costs, and motion to dismiss complaint granted. Greenblott, J. P., Kane, Larkin, Mikoll and Herlihy, JJ., concur.  