Roldan v. Potamousis

Mar 19, 1990
Versions:159 A.D.2d 615
552 N.Y.S.2d 669
1990 N.Y. App. Div. LEXIS 3004

an action to recover damages for personal injuries, the defendant Mario Roldan appeals from an order of the Supreme Court, Kings County (Cohen, J.), dated November 9, 1988, which.denied his motion to dismiss the complaint as against him on condition that the plaintiff serve a note of issue by November 10,1988.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed as against the defendant Mario Roldan, and the action against the remaining defendant is severed.

We find that the court improperly denied the defendant Mario Roldan’s motion to dismiss the complaint as against him since the plaintiff failed to show a justifiable excuse for the delay in placing this action on the Trial Calendar and a meritorious cause of action (see, Keating v Smith, 20 AD2d 141). No statement of merits sworn to by one having personal knowledge of the facts was submitted in opposition to the motion (see, Koriba, Inc. v Porco, 116 AD2d 630; Versatile Furniture Prods, v 32-8 Maujer Realty, 97 AD2d 463). The verified complaint was insufficient since it was verified by the plaintiff’s attorney who did not have personal knowledge of the facts (see, Duqmaq v Steward, 137 AD2d 653). Kunzeman, J. P., Kooper, Sullivan and Miller, JJ., concur.