Duqmaq v. Stewart

Feb 16, 1988
Versions:137 A.D.2d 653
524 N.Y.S.2d 745
1988 N.Y. App. Div. LEXIS 1776

In a negligence action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Levine, J.), entered April 20, 1987, which granted the defendants’ motion to dismiss the action for failure to prosecute.

Ordered that the order is affirmed, with costs

We agree with the Supreme Court that the plaintiffs failed to offer a reasonable excuse for the failure to timely comply with the demand to file a note of issue. Moreover, there was a failure to provide a showing of merits by one with personal knowledge of the facts (see, Midolo v Horner, 131 AD2d 825; Seidman v Shames, 130 AD2d 568). Neither the attorney’s affirmation in opposition to the motion nor the complaint and bill of particulars, verified by the attorney on information and belief, which was incorporated by reference, was based upon personal knowledge of the facts, and, therefore, they were inadequate to establish the meritorious nature of the action (cf., Saleh v Paratore, 60 NY2d 851, rearg denied 61 NY2d 759). Mollen, P. J., Brown, Eiber and Sullivan, JJ., concur.