(Download) "Ben P. Aquilino" by Supreme Court of New York * eBook PDF Kindle ePub Free
eBook details
- Title: Ben P. Aquilino
- Author : Supreme Court of New York
- Release Date : January 23, 1983
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 52 KB
Description
Appeal from an order of the Supreme Court at Apecial Term (Klein, J.), entered March 16, 1983 in Ulster County, which granted defendants motion to dismiss the action for failure to prosecute. In this personal injury action arising out of an auto accident, issue was joined in November of 1979. Following defendants motion to preclude, for discovery, and for authorization to obtain medical reports, plaintiff was served on August 6, 1982 with a CPLR 3216 90-day demand to file a note of issue. Special Term granted defendants motion to dismiss made four months later, giving rise to this appeal. The sanction of dismissal will be avoided only upon demonstration of a justifiable excuse and a good and meritorious cause of action (Riley v Makowski, 92 A.D.2d 664; Steiner v East Ramapo Cent. School Dist., 88 A.D.2d 594, 595; salerno v Presbyterian Hosp., 88 A.D.2d 637, 638). Here, plaintiffs excuse is that he was unable to depose one of the defendants (both the co-defendant and plaintiff had already been deposed) within the 90-day notice period. However, aware of the time requirement, plaintiff failed to avail himself of the ability to move to either vacate the notice or for an extension within the 90-day period. This constraint has been so strictly construed that proper filing on the 93rd day has been rejected by the court (Stein v Wainwrights Travel Serv., 92 A.D.2d 961), as well as filing on the 92nd day (Brady v Reynolds Printasign Co., 92 A.D.2d 780). Even were we to hold the excuse sufficient, dismissal is required because of plaintiffs failure to sufficiently demonstrate the existence of a meritorious cause of action. In Monteferrante v New York City Fire Dept. (74 A.D.2d 538, 539, citing Sortino v Fisher, 20 A.D.2d 25, 32) the court held, "The more slender the excuse for the delay, the greater the need to establish merit". Here, only the attorneys affidavit has been made in opposition to the motion in which he states "[t]hat the plaintiff has a meritorious cause of action and it would be a grave miscarriage of justice if his cause of action were dismissed". Plaintiff is required to show in evidentiary form that he has a viable cause of action (Riley v Makowski, 92 A.D.2d 664, supra). An attorneys affirmation merely paraphrasing the bill of particulars and alleging negligence in conclusory terms without containment of evidentiary facts is insufficient (Levin v 40 Realty, 80 A.D.2d 515), as is the affidavit of a party containing only conclusory allegations (Hargett v Health & Hosps, Corp., 88 A.D.2d 633). This failure mandates dismissal. Order affirmed, with costs. Sweeney, J.P., Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.