Rose, J.
We affirm. The petition in this special proceeding “complied] with the requirements for a complaint in an action,” and has already been served upon respondent (CPLR 402; see CPLR 304 [a]). Respondent admits that he is actually seeking a complaint in the action for money damages contemplated by the executor of the victim’s estate, which he has no right to demand prior to the commencement of that action (see Micro-Spy, Inc. v Small, 9 AD3d 122, 126 [2004]). Accordingly, the motion to dismiss was properly denied.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, without costs.