Nitto v. Kalisiak

107 A.D.2d 1066, 486 N.Y.S.2d 561, 1985 N.Y. App. Div. LEXIS 42887

Opinion

— Order unanimously reversed, on the law, without costs, motion granted and complaint dismissed. Memorandum: Defendant’s motion to dismiss after plaintiff’s eight-month delay in serving the complaint should have been granted (CPLR 3012, subd [b]). In an attempt to establish the merit of the claim, plaintiff’s counsel states by way of affidavit that, on information and belief, defendant was operating her vehicle at an improvident rate of speed. We have stated repeatedly that an affidavit of merit must be based on firsthand knowledge and that an attorney’s affidavit based on information and belief is insufficient (Wurzburger v Smith Fuel Co., 101 AD2d 620; Luksic v Killmer, 100 AD2d 864). (Appeal from order of Supreme Court, Erie County, Mintz, J. — wrongful death.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and O’Donnell, JJ.