Wurzburger v. R. E. Smith Fuel Co.

101 A.D.2d 620, 474 N.Y.S.2d 878, 1984 N.Y. App. Div. LEXIS 18160

Opinion

Appeal from an order of the Supreme Court at Special Term (Cobb, J.), entered February 14, 1983 in Greene County, which granted defendants’ motion for dismissal of the action. HThis action was commenced by the service of a summons with notice on February 18,1982. On March 16, 1982, a notice of appearance and demand for the service of a complaint were duly served upon the attorneys for plaintiffs. Eight months later, when no complaint had been forthcoming and no extension of time within which to serve the complaint had been granted or indeed sought, defendants moved for dismissal of the action pursuant to CPLR 3012 (subd [b]). In opposition, plaintiffs submitted only an affidavit from their attorneys. Special Term granted defendants’ motion and plaintiffs appeal. 11 There must be an affirmance. First of all, the affidavit must be submitted by one with personal knowledge of the facts and the attorneys’ affidavit does not meet this requirement. Furthermore, the proffered excuse does not provide justification for the delay. Moreover, it is well settled that “[o]nce the time to serve a complaint has expired, a plaintiff must provide the court with an affidavit of merit or a verified complaint in lieu thereof” (A &J Concrete Corp. v Arker, 54 NY2d 870, 872). Our search of the record fails to reveal either of these essentials. This absence prevents plaintiffs from succeeding and requires dismissal of the action (cf. Sammons v Freer, 99 AD2d 896, and cases cited therein). H Order affirmed, without costs. Mahoney, P. J., Kane, Main, Weiss and Harvey, JJ., concur.