
    Constance Sacramone, an Infant, by Her Father and Natural Guardian, Dario Sacramone, et al., Respondents, v David Tunick, Appellant.
   In a dental malpractice action, defendant appeals from an order of the Supreme Court, Queens County, entered June 27, 1975, which denied his motion to dismiss the complaint pursuant to CPLR 3216. Order reversed, on the law, with $50 costs and disbursements, and motion granted. The alleged malpractice occurred on January 20, 1964. This action was commenced on June 30, 1967. The 45-day notice pursuant to CPLR 3216 was served in June, 1972. Plaintiffs served a note of issue on July 28, 1972, but failed to file it. It was only after defendant served a notice of motion to dismiss the complaint, returnable May 30, 1975, that plaintiff, on May 23, 1975, filed the note of issue. In addition to the delay shown by the foregoing facts, plaintiffs, in opposing defendant’s motion, failed to show that their action has merit. The hospital records are insufficient for that purpose. Under the circumstances herein, the failure to grant defendant’s motion constituted an abuse of discretion. Gulotta, P. J., Hopkins, Latham, Shapiro and Hawkins, JJ., concur.  