Opinion
January 7, 1993
Appeal from the Supreme Court, Montgomery County (White, J.).
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; Charlotte Lake Riv. Assocs. v. American Ins. Co., 130 A.D.2d 947, lv denied 70 N.Y.2d 605). 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, lv denied 78 N.Y.2d 858; Charlotte Lake Riv. 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., 174 A.D.2d 1047; Juracka v Ferrara, 137 A.D.2d 921, 923, lv dismissed 72 N.Y.2d 840; Aquilino v. Adirondack Tr. Lines, 97 A.D.2d 929).
"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 [citations omitted]). Reliance upon the police accident report by Supreme Court was therefore error (see, supra, at 346; cf., Zuilkowski v. Sentry Ins., 114 A.D.2d 453, 454). Consequently, Supreme Court abused its discretion in denying Pettinato's motion.
Levine, Crew III, Mahoney and Harvey, JJ., concur. Ordered that the order is reversed, on the law, with costs, motion granted and complaint dismissed against defendant John C. Pettinato.