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

Appellate Division of the Supreme Court of the State of New York·Decided February 16, 1988·Published·Cited by 7 cases

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.

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

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