Grovey v. Gimbel Bros.

146 A.D.2d 742, 537 N.Y.S.2d 67, 1989 N.Y. App. Div. LEXIS 897

Opinion

In an action to recover damages for negligence, the defendant appeals from an order of the Supreme Court, Queens County (Zelman, J.), dated December 4, 1987, which denied its motion to dismiss the action due to the plaintiff’s neglect to prosecute.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion is granted.

On July 9, 1987, more than one year after the joinder of issue, the defendant served upon the plaintiff a demand that she resume prosecution of the action. More than 90 days thereafter, the defendant made the instant motion to dismiss the action for want of prosecution (CPLR 3216). The attorney for the plaintiff opposed the motion by submitting an affirmation which contained, inter alia, a brief and conclusory assertion that the plaintiff’s claim was meritorious. In light of the plaintiff’s failure to submit a competent affidavit of merit, the court erred in denying the defendant’s motion to dismiss for want of prosecution (see, e.g., Juracka v Ferrara, 137 AD2d 921, 922; Midolo v Horner, 131 AD2d 825, 826; Seidman v Shames, 130 AD2d 568; Mihaly v Mahoney, 126 AD2d 791, 793). Bracken, J. P., Rubin, Sullivan and Harwood, JJ., concur.