Bonilla v. Monrose

221 A.D.2d 399, 633 N.Y.S.2d 1015, 1995 N.Y. App. Div. LEXIS 11969

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Underwood, J.), dated July 14, 1994, which granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3012 (b) for lack of prosecution and denied the plaintiffs’ cross motion to compel the defendant to accept service of the complaint, and (2) a judgment of the same court, entered July 22, 1994, dismissing the complaint.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the defendant is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

To defeat the defendant’s motion to dismiss the complaint, the plaintiffs should have offered a reasonable excuse for failing to timely serve their complaint and should have shown that they had a meritorious action by furnishing a sworn statement from a person having personal knowledge of the facts (see, Innerarity v County of Westchester, 144 AD2d 645). The plaintiffs failed to comply with either requirement. Balletta, J. P., Pizzuto, Joy and Altman, JJ., concur.