Wasielewski v. Town of Cheektowaga

281 A.D.2d 944, 722 N.Y.S.2d 674, 2001 N.Y. App. Div. LEXIS 2723

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2001
• Status: Published

Opinion

Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court abused its discretion in denying defendants’ motion to dismiss the complaint in this negligence action pursuant to CPLR 3216 based upon plaintiffs’ failure to comply with defendants’ 90-day demand to file a note of issue (see, Baczkowski v Collins Constr. Co., 89 NY2d 499, 504-505; Burridge v Gaines, 281 AD2d 967 [decided herewith]; see also, Rowley v Carl Zeiss, Inc., 270 AD2d 835, lv denied 95 NY2d 766; Geise v Wetherill, 238 AD2d 952). In response to defendants’ demand pursuant to CPLR 3216, plaintiffs neither filed a note of issue within 90 days nor moved to vacate the demand or to extend the time within which to file a note of issue. Thus, in order to avoid dismissal, plaintiffs were required to demonstrate a justifiable excuse for the delay and a meritorious cause of action (see, Rowley v Carl Zeiss, Inc., supra; Geise v Wetherill, supra; see also, Baczkowski v Collins Constr. Co., supra, at 503). Here, the affidavit of plaintiffs’ attorney, who lacks personal knowledge of the facts, is insufficient to establish a meritorious cause of action (see, Rowley v Carl Zeiss, Inc., supra; see also, Barton v County of Monroe, 92 AD2d 746). The “generalized details” set forth in plaintiffs’ verified complaint are likewise insufficient to establish a meritorious cause of action (Hogan v City of Kingston, 243 AD2d 981, 982, lv dismissed in part and denied in part 91 NY2d 907; see, Rowley v Carl Zeiss, Inc., supra). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Dismiss Pleading.) Present — Pigott, Jr., P. J., Kehoe, Burns and Lawton, JJ.