Carvel-Dari Freeze Stores, Inc. v. Lukon

• Court: New York Supreme Court
• Writing for the Court: FRED J. MUNDER
• Citation: Carvel-Dari Freeze Stores, Inc. v. Lukon, 219 N.Y.S.2d 716 (N.Y. Sup. Ct. 1961)
• Decision Date: 21 August 1961
• Docket Number: CARVEL-DARI
• Parties: FREEZE STORES, INC., v. George LUKON, John W. Bogeski and Nathan T. Sedley, etc.

Page 716

219 N.Y.S.2d 716

CARVEL-DARI FREEZE STORES, INC., v. George LUKON, John W. Bogeski and Nathan T. Sedley, etc.

Supreme Court, Special Term, Suffolk County, Part II.

Aug. 21, 1961.

Griffing, Smith, Tasker & Lundberg, Riverhead, for plaintiff.

Albert M. Levert, Northport, for defendants Lukon & Bogeski.

O'Malley & Boyle, New York City, for defendant, Sedley.

FRED J. MUNDER, Justice.

The defendant Nathan T. Sedley moves to dismiss the second amended complaint in this action pursuant to Section 181 of the Civil Practice Act and Rule 156 of the Rules of Civil Practice for unreasonable neglect to prosecute the action and for failure to serve and file a note of issue after the joinder of issue on August 28, 1958, and for an order cancelling of record the notice of pendency of action filed by the plaintiff on the ground that it has expired because more than three years have elapsed since it was filed and no order extending it, pursuant to Section 121-a of the Civil Practice Act, was obtained and filed before its expiration date.

On the same grounds the defendants George Lukon and John W. Bogeski move to dismiss the third amended complaint on which issue was joined on April 29, 1959, and also to cancel of record the notice of pendency of action.

The plaintiff cross moves in the alternative for an order extending, nunc pro tunc, the notice of pendency of action as of the expiration date, April 15, 1961, or permitting plaintiff to serve an amended notice of pendency of action based on the second and third amended complaints or permitting plaintiff to file a new notice of pendency of action.

On the motions to dismiss for neglect to prosecute no affidavit of merits has been submitted on plaintiff's behalf by anyone. It is sought to excuse this omission on the ground that the plaintiff is a corporation, that its office is not in the county where its attorneys practice, that the attorney has verified both complaints and that his opposing affidavit is an affidavit of merits, that the voluminous pleadings, bill of particulars and other prior proceedings demonstrate the merit of the action as does this court's decision (per Mr. Justice Hill) which struck three affirmative defensed on motion and thus established the sufficiency of the complaint.

None of these excuses suffices. A corporation is held to the same rule as any other party. DeLong Corporation v. J. Rich Steers, Inc., 10 A.D.2d 705, 198 N.Y.S.2d 134. The attorney's affidavit alone is insufficient in the absence of personal knowledge on his part of the facts which would sustain the cause of action. Philip Carey Mfg. Co. v. Partition Manufacturing & Installation Corp ., 281 App.Div. 1047 121 N.Y.S.2d 681; Rist v. 234 East 33rd Corp., 4 A.D.2d 867, 167 N.Y.S.2d 46. Moreover the attorney's affidavit indicates his lack of personal knowledge of the facts. His offer to present to the court his voluminous office files does not obviate the necessity for a factual affidavit of merits. The allegations of the pleadings and contentions expressed in other papers filed in the action are no substitute for the proofs now required. The motion to strike affirmative defenses enabled the defendants to question the sufficiency of the complaint. If they did that, and there is nothing in the decision of Mr. Justice Hill to indicate it, his decision would have simply approved the form and sufficiency of the allegations of the complaint. It would not have established the truth or merit of the allegations. Manson v. Curtis, 223 N.Y. 313, 119 N.E. 559, cited by the plaintiff, does not otherwise hold.

The rule is that an affidavit of merits is a prerequisite to a consideration of the opposition to a motion such as the instant motions to dismiss. It is not necessarily determinative and, in fact, may be disregarded if there is other proof submitted which the court finds sufficient to warrant a favorable grant of its judicial discretion. See Mintzer v. Carl M. Loeb, Rhoades & Co., 10 A.D.2d 27, 197 N.Y.S.2d 54. But there must be an affidavit of merits. Charles Barnett Co., Inc. v. St. Paul Fire and Marine Insurance Co., 7 A.D.2d 897, 181 N.Y.S.2d 890; Brassner Manufacturing Co., Inc. v. Consolidated Edison Company of New York, Inc., 1 A.D.2d 840, 148 N.Y .S.2d 782; Topp v. Casco Products Corp., 8 A.D.2d 727, 187 N.Y.S.2d 66.

While there has been a long delay in concluding the preliminary proceedings and in filing a note of issue in this action, the voluminous official court file, the length of the complaint (72 paragraphs), the length of the bill of particulars (35 paragraphs on 14 pages), the length of the answer (65 paragraphs with eight separate defenses alleged of which four have been stricken on motion), and the numerous exhibits attached to the pleadings all indicate the complexity of the litigation. That plus the delays occasioned by the illness of counsel for the defendants Lukon and Bogeski and the extraordinary trial and appellate court engagements of plaintiff's counsel may well justify the delay in this action. For this reason the dismissal, which must here be ordered because of the absence of a showing of merits, will be with leave to the plaintiff to move to vacate the dismissal upon proper papers including an affidavit of merits by someone on behalf of the plaintiff who has actual personal knowledge of the facts. DeLong Corporation v. J. Rich Steers, Inc., supra, 10 A.D.2d 705, 198 N.Y.S.2d 134; Ruderman v. Feffer, 10 A.D.2d 704, 198 N.Y.S.2d 130; Barnes v. Utility Lines, Inc., 12 A.D.2d 524, 207 N.Y.S.2d 735; also cf. Wallgren v. Sucato, 11 A.D.2d 801, 205 N.Y.S.2d 210; and Firth Carpet Co. v. Matuka Realty Development Corporation, 276 App.Div. 784, 92 N.Y.S.2d 823.

On the motions to cancel of record the notice of pendency of action filed by the plaintiff on April 15, 1958, and not thereafter extended as permitted by Section 121-a of the Civil Practice Act, the defendants are entitled to the relief they seek. That section, enacted in 1957, was specifically designed to limit the effectiveness of a notice of pendency to a period of three years from the filing date. The enactment followed the recommendation of the Judical Conference that...