Luksic v. Killmer
| Decision Date | 09 April 1984 |
| Parties | Stefan LUKSIC, Respondent, v. John S. KILLMER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Nathan Cyperstein, New York City (Bonnie S. Kurtz, Long Beach, of counsel), for appellant.
Connolly & Connolly, Goshen (William J. Connolly, Goshen, of counsel), for respondent.
Before O'CONNOR, J.P., and BROWN, BOYERS and EIBER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages, inter alia, for personal injuries and property damage allegedly sustained as a result of a motorcycle accident, defendant appeals from an order of the Supreme Court, Orange County, dated June 8, 1983, which denied his motion to dismiss the action for failure to timely serve a complaint, upon condition that within 30 days after service upon him of a copy of the order with notice of entry, plaintiff serve his complaint.
Order reversed, on the law, with costs, motion granted and action dismissed.
Defendant moved to dismiss plaintiff's action nearly seven months after serving a demand for the complaint upon plaintiff pursuant to CPLR 3012 (subd. [b] ). In opposition to the motion, plaintiff submitted an attorney's affirmation, alleging, in effect, that he did not intend to serve a complaint as long as settlement negotiations with defendant's insurance carrier were still in progress. In addition, counsel simply alleged that plaintiff had a good and meritorious case since defendant's motorcycle had collided with the rear end of plaintiff's motorcycle.
Based upon the foregoing facts which were before Special Term, it was an abuse of discretion for the court not to unconditionally grant defendant's motion to dismiss the action (CPLR 3012, subd. [b]; see Stolowitz v. Mount Sinai Hosp., 60 N.Y.2d 685, 468 N.Y.S.2d 460, 455 N.E.2d 1255; Bankers Trust Hudson Val., N.A. v. Bressman, 84 A.D.2d 555, 443 N.Y.S.2d 278, affd. 56 N.Y.2d 565, 450 N.Y.S.2d 181, 435 N.E.2d 398). Counsel's bald assertion that the action had merit because the accident from which it arose involved a rear-end collision was insufficient as a matter of law, it being well established that the affidavit of merit must be made by a party with personal knowledge of the facts relating to the claim, and such facts must reach an evidentiary standard sufficient to defeat a motion for summary judgment (see Tonello v. Carborundum Co., 91 A.D.2d 1169, 459 N.Y.S.2d 138, affd. 59 N.Y.2d 720, 463 N.Y.S.2d 425, 450 N.E.2d 231; Abrams, Kochman, Ratskeller v. Esquire Motels, 79 A.D.2d 879, 434 N.Y.S.2d 539; Andreano v. Testa, 64 A.D.2d 1019, 409 N.Y.S.2d 302).
Moreover, it is clear that the so-called settlement...
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