On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in dismissing the complaint pursuant to CPLR 3012 (subd [b]). As we held in Barasch v Micucci ( 49 N.Y.2d 594, 600-601), it would have constituted an abuse of discretion to have failed to dismiss.
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.