Wasielewski v. Town of Cheektowaga

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

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.