Kubick v. Ballback

• Decision Date: 30 September 1996
• Citation: 231 A.D.2d 684,647 N.Y.S.2d 982
• Parties: Marie KUBICK, Respondent, v. "John" BALLBACK, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 982

647 N.Y.S.2d 982

231 A.D.2d 684

Marie KUBICK, Respondent, v. "John" BALLBACK, et al., Appellants.

Supreme Court of New York, Appellate Division, Second Department.

Sept. 30, 1996.

Montfort, Healy, McGuire & Salley, Garden City (E. Richard Rimmels, Jr., of counsel), for appellants.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated January 2, 1996, which denied their motion to dismiss the complaint pursuant to CPLR 3215(c).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed pursuant to CPLR 3215(c).

The affidavit submitted by the plaintiff in opposition to the defendants' motion failed even to address the issue of the merits of the claim, let alone establish that the claim was in fact a meritorious one (see, Manago v. Giorlando, 143 A.D.2d 646, 533 N.Y.S.2d 106). While it is true that a complaint verified by a plaintiff on the basis of personal knowledge and which details the defendants' acts of negligence may constitute a sufficient affidavit of merits, the complaint in this action does not meet these requirements (see, Salch v. Paratore, 60 N.Y.2d 851, 470 N.Y.S.2d 138, 458 N.E.2d 379).

MANGANO, P.J., and O'BRIEN, PIZZUTO, GOLDSTEIN and LUCIANO, JJ., concur.