Nitze v. Gallagher

Appellate Division of the Supreme Court of New York

Nitze v. Gallagher

138 A.D.2d 466, 526 N.Y.S.2d 404, 1988 N.Y. App. Div. LEXIS 2873

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

DecidedMarch 14, 1988

StatusPublished

Cited by2 cases

This text of 138 A.D.2d 466 (Nitze v. Gallagher) 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

Nitze v. Gallagher, 138 A.D.2d 466, 526 N.Y.S.2d 404, 1988 N.Y. App. Div. LEXIS 2873 (N.Y. Ct. App. 1988).

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Opinion

In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated May 30, 1986, which denied his motion to dismiss the action on the ground that the complaint was not timely served.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is dismissed.

The Supreme Court erred in denying the defendant’s motion to dismiss this action based on the plaintiff’s failure to serve his complaint until more than two years after service was required. Even if the plaintiff’s excuse for the delay could be considered reasonable, she has failed to make an adequate showing that her claim has merit. The plaintiff did not submit an affidavit of merit. Furthermore, neither her attorney’s affirmation in opposition to the defendant’s motion nor the complaint, verified by her attorney, which was based, in part, upon information and belief, constitutes a sufficient affidavit of merit. Therefore, they were inadequate to establish a meritorious cause of action (see, Oversby v Linde Div., 121 AD2d 373; cf., Duqmaq v Stewart, 137 AD2d 653). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.

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In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated May 30, 1986, which denied his motion to dismiss the action on the ground that the complaint was not timely served.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is dismissed.

The Supreme Court erred in denying the defendant’s motion to dismiss this action based on the plaintiff’s failure to serve his complaint until more than two years after service was required. Even if the plaintiff’s excuse for the delay could be considered reasonable, she has failed to make an adequate showing that her claim has merit. The plaintiff did not submit an affidavit of merit. Furthermore, neither her attorney’s affirmation in opposition to the defendant’s motion nor the complaint, verified by her attorney, which was based, in part, upon information and belief, constitutes a sufficient affidavit of merit. Therefore, they were inadequate to establish a meritorious cause of action (see, Oversby v Linde Div., 121 AD2d 373; cf., Duqmaq v Stewart, 137 AD2d 653). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.

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Bluebook (online)

138 A.D.2d 466, 526 N.Y.S.2d 404, 1988 N.Y. App. Div. LEXIS 2873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nitze-v-gallagher-nyappdiv-1988.

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