Opinion
March 21, 2001.
Appeal from Order of Supreme Court, Erie County, Notaro, J. — Dismiss Pleading.
PRESENT: PIGOTT, JR., P. J., KEHOE, BURNS AND LAWTON, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed.
Memorandum:
Supreme Court abused its discretion in denying defendants' motion to dismiss the complaint in this negligence action pursuant to CPLR 3216 based upon plaintiffs' failure to comply with defendants' 90-day demand to file a note of issue (see, Baczkowski Collins Constr. Co., 89 N.Y.2d 499, 504-505; Burridge v. Gaines, 281 A.D.2d 967 [decided herewith]; see also, Rowley v. Carl Zeiss, Inc., 270 A.D.2d 835, lv denied 95 N.Y.2d 766 ; Geise v. Wetherill, 238 A.D.2d 952). In response to defendants' demand pursuant to CPLR 3216, plaintiffs neither filed a note of issue within 90 days nor moved to vacate the demand or to extend the time within which to file a note of issue. Thus, in order to avoid dismissal, plaintiffs were required to demonstrate a justifiable excuse for the delay and a meritorious cause of action ( see, Rowley v. Carl Zeiss, Inc., supra; Geise v. Wetherill, supra; see also, Baczkowski v. Collins Constr. Co., supra, at 503). Here, the affidavit of plaintiffs' attorney, who lacks personal knowledge of the facts, is insufficient to establish a meritorious cause of action ( see, Rowley v. Carl Zeiss, Inc., supra; see also, Barton v. County of Monroe, 92 A.D.2d 746). The "generalized details" set forth in plaintiffs' verified complaint are likewise insufficient to establish a meritorious cause of action ( Hogan v. City of Kingston, 243 A.D.2d 981, 982, lv dismissed in part and denied in part 91 N.Y.2d 907; see, Rowley v. Carl Zeiss, Inc., supra).