Opinion
December 23, 1988
Appeal from the Supreme Court, Erie County, Ricotta, J.
Present — Doerr, J.P., Denman, Balio, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In opposing defendants' separate motions to dismiss pursuant to CPLR 3216, plaintiffs failed to submit an affidavit of merit or to present any excuse for their failure to file a note of issue within the 90-day demand period (see, CPLR 3216 [e]). We reject plaintiffs' claim that the verified complaint may be treated as the affidavit of merit. A verified pleading may serve as an affidavit of merit only where it sets forth evidentiary facts in such detail that it could defeat a motion for summary judgment (Walker v Town of Lockport, 109 A.D.2d 1102, affd 65 N.Y.2d 840). The complaint in this case contains only conclusory assertions of liability against Broker's Marketplace, and fails to set forth any evidentiary facts supporting the claim that Henry Holland, Inc. was negligent in failing to examine the financial solvency of the insurer or that on the date of the underlying incident, Holland had breached its agreement by failing to obtain coverage. Moreover, the complaint was not submitted as an affidavit by plaintiffs; the complaint appeared in the record before Special Term as part of defendants' submission.
This court has repeatedly held that in the absence of justifiable excuse and an affidavit of merit, failure to grant an unconditional dismissal of the complaint constitutes an abuse of discretion (Charlotte Lake Riv. Assocs. v American Ins. Co., 130 A.D.2d 947, lv denied 70 N.Y.2d 605; McDonald v Song Mountain, 125 A.D.2d 1006; see also, Moran v Bertola, 133 A.D.2d 513; Skeet v Rashid, 124 A.D.2d 1035; Cox v Edmister, 122 A.D.2d 557, lv denied 69 N.Y.2d 603; Walker v Town of Lockport, 109 A.D.2d 1102, affd 65 N.Y.2d 840, supra). We, therefore, modify the order to grant the motion to dismiss the complaint unconditionally.