Nitze v. Gallagher

In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated May 30, 1986, which denied his motion to dismiss the action on the ground that the complaint was not timely served. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is dismissed. The Supreme Court erred in denying the defendant’s motion to dismiss this action based on the plaintiff’s failure to serve his complaint until more than two years after service was required. Even if the plaintiff’s excuse for the delay could be considered reasonable, she has failed to make an adequate showing that her claim has merit. The plaintiff did not submit an affidavit of merit. Furthermore, neither her attorney’s affirmation in opposition to the defendant’s motion nor the complaint, verified by her attorney, which was based, in part, upon information and belief, constitutes a sufficient affidavit of merit. Therefore, they were inadequate to establish a meritorious cause of action (see, Oversby v Linde Div., 121 AD2d 373; cf., Duqmaq v Stewart, 137 AD2d 653). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.