Nitto v. Kalisiak

Appellate Division of the Supreme Court of New York

Nitto v. Kalisiak

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

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

DecidedJanuary 29, 1985

StatusPublished

Cited by4 cases

This text of 107 A.D.2d 1066 (Nitto v. Kalisiak) 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

Nitto v. Kalisiak, 107 A.D.2d 1066, 486 N.Y.S.2d 561, 1985 N.Y. App. Div. LEXIS 42887 (N.Y. Ct. App. 1985).

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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.

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— 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.

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Bluebook (online)

107 A.D.2d 1066, 486 N.Y.S.2d 561, 1985 N.Y. App. Div. LEXIS 42887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nitto-v-kalisiak-nyappdiv-1985.

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