MEMORANDUM.
The order of the Appellate Division should be modified, with costs to appellant, and the motion to dismiss the complaint granted unconditionally.
On this motion by defendant to dismiss the action for the failure of plaintiff for a period of nine months to serve a complaint, plaintiff concedes, as he must, that no affidavit of merits was submitted. Because of this deficiency it was error as a matter of law not to grant the motion to dismiss without condition. ( Amodeo v Radler, 59 N.Y.2d 1001; Barasch v Micucci, 49 N.Y.2d 594, 599; Sortino v Fisher, 20 A.D.2d 25, 31-32.)
In view of this disposition we have no occasion to address the contentions of the parties as to the reasonableness of the proffered excuse for the delay in serving the complaint.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, SIMONS and KAYE concur; Judge MEYER taking no part.
Order modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.