De Lisa v. Pettinato

• Decision Date: 07 January 1993
• Citation: 189 A.D.2d 988,592 N.Y.S.2d 843
• Parties: Richard J. DE LISA, Respondent, v. John C. PETTINATO, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 843

592 N.Y.S.2d 843

189 A.D.2d 988

Richard J. DE LISA, Respondent, v. John C. PETTINATO, Appellant, et al., Defendants.

Supreme Court, Appellate Division Third Department.

Jan. 7, 1993.

Mary Audi Bjork (Louise E. Dunn, of counsel), Albany, for appellant.

Glen W. Brownell, Schenectady, for respondent.

Before WEISS, P.J., and LEVINE, CREW, MAHONEY and HARVEY, JJ.

WEISS, Presiding Justice.

Appeal from an order of the Supreme Court (White, J.), entered April 22, 1992 in Montgomery County, which denied defendant John C. Pettinato's motion to dismiss the complaint against him for want of prosecution.

Plaintiff's failure to timely comply with defendant's CPLR 3216 90-day demand resulted in the instant motion to dismiss the complaint for failure to prosecute by defendant John C. Pettinato. To avoid dismissal plaintiff was required to demonstrate a justifiable excuse for his delay in complying with the demand and, in addition, to show that his cause of action had legal merit (see, Mason v. Simmons, 139 A.D.2d 880, 881, 527 N.Y.S.2d 611; Charlotte Lake River Assocs. v. American Ins. Co., 130 A.D.2d 947, 516 N.Y.S.2d 562, lv. denied 70 N.Y.2d 605, 519 N.Y.S.2d 1028, 513 N.E.2d 1308). The showing of merit required an affidavit by one with personal knowledge of the facts and required that materials be included in evidentiary form sufficient to defeat a summary judgment motion (see, Schuman v. Raymond Corp., 174 A.D.2d 1040, 572 N.Y.S.2d 205, lv. denied 78 N.Y.2d 858, 575 N.Y.S.2d 454, 580 N.E.2d 1057; Charlotte Lake River Assocs. v. American Ins. Co., supra ). We find that the attorney's affidavit, even when considered with the attached police report of the accident, was insufficient to demonstrate that plaintiff has a meritorious cause of action (see, Zent v. Board of Educ. of Cleveland Hill School Dist., 174 A.D.2d 1047, 572 N.Y.S.2d 211; Juracka v. Ferrara, 137 A.D.2d 921, 923, 524 N.Y.S.2d 885, lv. dismissed 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 47; Aquilino v. Adirondack Tr. Lines, 97 A.D.2d 929, 470 N.Y.S.2d 723).

"Certain business records may be received into evidence without having been authenticated by their maker, but only if those records are certified in accordance with CPLR 4518(c) * * * " (Matter of Peerless Ins. Co. v. Milloul, 140 A.D.2d 346, 347, 527 N.Y.S.2d 838 [citations omitted]. Reliance upon the police accident report by Supreme Court was therefore error (see, id., at 346, 527 N.Y.S.2d 838; cf., Zuilkowski v. Sentry Ins., 114 A.D.2d 453, 454, 494 N.Y.S.2d 363). Conseque...