Altman v. Embassy Cooperative, Inc.

41 A.D.2d 767, 341 N.Y.S.2d 926, 1973 N.Y. App. Div. LEXIS 4839

Opinion

:In a negligence action to recover damages for personal injuries, medical expenses and loss of services, the appeal is from an order of the Supreme Court, Queens County, dated June 27, 1972, which (1) denied defendant’s motion to dismiss the complaint for lack of prosecution and (2) granted plaintiffs’ cross motion to remove the case from said court to the Civil Court of the City of New York. Order reversed, without costs; defendant’s motion granted unconditionally and complaint dismissed; and cross motion of plaintiffs dismissed as academic. Pursuant to CPLR 3216, as amended, defendant duly served upon plaintiffs’ attorney a notice demanding that plaintiffs, within 45 days, file a note of issue. Plaintiffs failed to comply with the demand. In our opinion, the excuses offered by plaintiffs did not justify the delay in prosecuting the action (Arvanitakis v. Realty Equities — 1961 Corp., 26 A D 2d 825; Passalacqua v. County Estates, 24 A D 2d 497). The inadequacy of those excuses, combined with the eonclusory affidavit of merits submitted by the injured plaintiff’s husband, who does not allege any personal knowledge of the facts of the alleged accident, entitled defendant to an unconditional dismissal of the complaint (Keating v. Smith, 20 A D 2d 141; Sortino v. Fisher, 20 A D 2d 25). Rabin, P. J., Hopkins, Munder, Martuseello and Shapiro, JJ., concur.