Zent v. Board of Educ., Cleveland Hill School Dist.
| Decision Date | 07 June 1991 |
| Citation | 572 N.Y.S.2d 211,174 A.D.2d 1047 |
| Parties | Donald ZENT and Linda Zent, Respondents, v. BOARD OF EDUCATION, CLEVELAND HILL SCHOOL DISTRICT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Hurwitz & Fine, P.C. by Amy Carroll, Buffalo, for appellant.
John Lloyd Egan & Associates, Buffalo by Timothy A. Fischer, Buffalo, for respondents.
Before DOERR, J.P., and GREEN, PINE, BALIO and LAWTON, JJ.
It is well settled that a party resisting a motion to dismiss for failure to comply with a 90-day demand must demonstrate a reasonable excuse for the failure to comply with the demand and a good and meritorious cause of action (CPLR 3216[e]; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483; Charlotte Lake Riv. 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; McDonald v. Song Mountain, 125 A.D.2d 1006, 1007, 510 N.Y.S.2d 401; Cox v. Edmister, 122 A.D.2d 557, 505 N.Y.S.2d 20; Highlands Ins. Co. v. Maddena Constr. Co., 109 A.D.2d 1071, 1072, 487 N.Y.S.2d 215). In the absence of such a showing, it was an abuse of discretion for Special Term to deny defendant's motion to dismiss (see, Cox v. Edmister, supra ).
Here, plaintiffs wholly failed to make the required showing. The affidavit of plaintiffs' attorney does not attempt to explain the failure to comply with the demand, nor can it serve as an affidavit of merit because it is made by one with no personal knowledge of the facts (see, Charlotte Lake Riv. Assocs. v. American Ins. Co., supra, at 947, 516 N.Y.S.2d 562). Plaintiffs' affidavits are likewise insufficient because they are "couched in conclusory terms and merely paraphrase the complaint and bill of particulars" (Meth v. Maimonides Med. Center, 99 A.D.2d 799, 800, 472 N.Y.S.2d 134; see also, Billings v. Berkshire Mutual Ins. Co., 149 A.D.2d 895, 897, 540 N.Y.S.2d 577).
Order unanimously reversed on the law without costs, motion granted and complaint dismissed.
To continue reading
Request your trial
-
Wellington v. Weber
...exercised its discretion in relieving plaintiff from his default in serving the complaint (see, Zent v. Board of Educ. of Cleveland Hill School Dist., 174 A.D.2d 1047, 1048, 572 N.Y.S.2d 211; Cox v. Edmister, 122 A.D.2d 557, 505 N.Y.S.2d 20, appeal dismissed68 N.Y.2d 900, 508 N.Y.S.2d 945, ......
-
De Lisa v. Pettinato
...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......
-
John G. Trautwein Fish Co., Inc. v. Gerland
...989, 562 N.Y.S.2d 2; General Elec. Tech. Servs. Co. v. Perez, 156 A.D.2d 781, 549 N.Y.S.2d 203; cf., Zent v. Board of Educ. of Cleveland Hill School Dist., 174 A.D.2d 1047, 572 N.Y.S.2d 211; Charlotte Lake Riv. Assocs. v. American Ins. Co., 130 A.D.2d 947, 516 N.Y.S.2d 562, lv. denied 70 N.......
-
Hansel v. Lamb
...personal knowledge of the facts is not sufficient to constitute an affidavit of merit. Zent v. Bd. of Educ. of Cleveland Hill School District, 174 A.D.2d 1047, 1048, 572 N.Y.S.2d 211 (4th Dep't 1991). Charlotte Lake River Assocs. v. American Ins. Co., 130 A.D.2d 947, 947, 516 N.Y.S.2d 562 (......