Zent v. Board of Education of Cleveland Hill School District

174 A.D.2d 1047, 572 N.Y.S.2d 211, 1991 N.Y. App. Div. LEXIS 9007

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1991
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: It is well settled that a party resisting a motion to dismiss for failure to comply with a 90-day demand must demonstrate a reasonable excuse for the failure to comply with the demand and a good and meritorious cause of action (CPLR 3216 [e]; Papadopoulas v R.B. Supply Corp., 152 AD2d 552; Charlotte Lake Riv. Assocs. v American Ins. Co., 130 AD2d 947, lv denied 70 NY2d 605; McDonald v Song Mountain, 125 AD2d 1006, 1007; Cox v Edmister, 122 AD2d 557; Highlands Ins. Co. v Maddena Constr. Co., 109 AD2d 1071, 1072). In the absence of such a showing, it was an abuse of discretion for Special Term to deny defendant’s motion to dismiss (see, Cox v Edmister, supra).

Here, plaintiffs wholly failed to make the required showing. The affidavit of plaintiffs’ attorney does not attempt to explain the failure to comply with the demand, nor can it serve as an affidavit of merit because it is made by one with no personal knowledge of the facts (see, Charlotte Lake Riv. Assocs. v American Ins. Co., supra, at 947). Plaintiffs’ affidavits are likewise insufficient because they are "couched in conclusory terms and merely paraphrase the complaint and bill of particulars” (Meth v Maimonides Med. Center, 99 AD2d 799, 800; see also, Billings v Berkshire Mut. Ins. Co., 149 AD2d 895, 897). (Appeal from Order of Supreme Court, Erie County, Joslin, J. —Dismiss Complaint.) Present—Doerr, J. P., Green, Pine, Balio and Lawton, JJ.