Opinion
February 23, 1998
Appeal from the Supreme Court, Nassau County (Alpert, J.)
Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is dismissed.
By order dated July 6, 1995, the plaintiffs were directed to file a note of issue within 90 days. It is undisputed that the plaintiffs neither timely filed a note of issue, nor moved pursuant to CPLR 2004 for an extension of time within which to comply. Having failed to pursue either of the foregoing options, the plaintiffs were obligated to demonstrate a reasonable excuse and a meritorious cause of action to avoid the sanction of dismissal ( see, CPLR 3216 [e]; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552; Kwiatkowska v. Aramburu, 133 A.D.2d 810). The plaintiffs failed to discharge their burden in this respect. Indeed, the only excuse proffered by the plaintiffs for the default in filing the note of issue was improperly raised for the first time in their reply papers ( see, Fischer v. Weiland, 241 A.D.2d 439; Pinkston v. Weiss, 238 A.D.2d 393.
The plaintiffs also failed to establish that they possess a potentially meritorious claim, since their motion was not accompanied by an evidentiary affidavit of merit of a person having personal knowledge of the facts of the accident ( see, Aleshin v. City of Long Beach, 147 A.D.2d 604). Although the plaintiff Elaine Russo submitted an affidavit of merit in which she stated that the operator of the other vehicle involved in the subject accident went through a stop sign, she had acknowledged at her examination before trial that she had no personal knowledge of that alleged fact.
Rosenblatt, J.P., Sullivan, Joy, Altman and Luciano, JJ., concur.