Duqmaq v. Stewart

Appellate Division of the Supreme Court of New York

Duqmaq v. Stewart

137 A.D.2d 653, 524 N.Y.S.2d 745, 1988 N.Y. App. Div. LEXIS 1776

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 16, 1988

StatusPublished

Cited by7 cases

This text of 137 A.D.2d 653 (Duqmaq v. Stewart) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duqmaq v. Stewart, 137 A.D.2d 653, 524 N.Y.S.2d 745, 1988 N.Y. App. Div. LEXIS 1776 (N.Y. Ct. App. 1988).

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Opinion

In a negligence action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Levine, J.), entered April 20, 1987, which granted the defendants’ motion to dismiss the action for failure to prosecute.

Ordered that the order is affirmed, with costs

We agree with the Supreme Court that the plaintiffs failed to offer a reasonable excuse for the failure to timely comply with the demand to file a note of issue. Moreover, there was a failure to provide a showing of merits by one with personal knowledge of the facts (see, Midolo v Horner, 131 AD2d 825; Seidman v Shames, 130 AD2d 568). Neither the attorney’s affirmation in opposition to the motion nor the complaint and bill of particulars, verified by the attorney on information and belief, which was incorporated by reference, was based upon personal knowledge of the facts, and, therefore, they were inadequate to establish the meritorious nature of the action (cf., Saleh v Paratore, 60 NY2d 851, rearg denied 61 NY2d 759). Mollen, P. J., Brown, Eiber and Sullivan, JJ., concur.

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In a negligence action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Levine, J.), entered April 20, 1987, which granted the defendants’ motion to dismiss the action for failure to prosecute.

Ordered that the order is affirmed, with costs

We agree with the Supreme Court that the plaintiffs failed to offer a reasonable excuse for the failure to timely comply with the demand to file a note of issue. Moreover, there was a failure to provide a showing of merits by one with personal knowledge of the facts (see, Midolo v Horner, 131 AD2d 825; Seidman v Shames, 130 AD2d 568). Neither the attorney’s affirmation in opposition to the motion nor the complaint and bill of particulars, verified by the attorney on information and belief, which was incorporated by reference, was based upon personal knowledge of the facts, and, therefore, they were inadequate to establish the meritorious nature of the action (cf., Saleh v Paratore, 60 NY2d 851, rearg denied 61 NY2d 759). Mollen, P. J., Brown, Eiber and Sullivan, JJ., concur.

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Bluebook (online)

137 A.D.2d 653, 524 N.Y.S.2d 745, 1988 N.Y. App. Div. LEXIS 1776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duqmaq-v-stewart-nyappdiv-1988.

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