Innerarity v. County of Westchester

144 A.D.2d 645, 535 N.Y.S.2d 25, 1988 N.Y. App. Div. LEXIS 12360

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1988
• Status: Published

Opinion

In an action to recover damages for assault, battery and violation of civil rights, the plaintiff appeals from an order of the Supreme Court, Westchester County (Rubenfeld, J.), entered January 28, 1987, which granted the defendants’ motion pursuant to CPLR 3012 (b) to dismiss the action for lack of prosecution.

Ordered that the order is affirmed, with costs.

In order to defeat the motion for dismissal in this case, the plaintiff should have first offered a reasonable excuse for failing to timely serve a complaint and should have shown that he has a meritorious action by furnishing a sworn statement from a person having personal knowledge of the facts such as would be sufficient to defeat a motion for summary judgment (see, Luksic v Killmer, 100 AD2d 864). The plaintiff failed to comply with either requirement. Weinstein, J. P., Bracken, Kunzeman and Rubin, JJ., concur.