Len v. Consolidated Freightways

Order unanimously reversed, without costs, motion granted and complaint dismissed and motion to strike matter from respondent’s brief denied as academic. Memorandum: Special Term abused its discretion in not unconditionally granting defendant’s motion to dismiss plaintiff’s complaint pursuant to CPLR 3216. The only document submitted in opposition to defendant’s motion to dismiss for failure to file a note of issue and statement of readiness within 90 days of demand was an affidavit by plaintiff’s counsel which did not set forth any evidentiary facts relating to the merits of plaintiff’s case. Consequently, it was insufficient to establish that plaintiff had a meritorious cause of action (Abrams, Kochman, Rathskeller v Esquire Motels, 79 983 AD2d 879) and, hence, the complaint should have been dismissed (CPLR 3216, subd [e]; see, e.g., Berna v Monroe Community Coll., 91 AD2d 1199; Nelson v Eastman Dental Center, 85 AD2d 887; Brothers v Wall, 84 AD2d 923). (Appeal from order of Supreme Court, Erie County, Mintz, J. — motion to dismiss.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ.