Opinion
May 25, 1984
Appeal from the Supreme Court, Monroe County, Tillman, J.
Present — Dillon, P.J., Denman, Boomer, Green and Schnepp, JJ.
Order affirmed, without costs. All concur, except Boomer, J., who dissents and votes to reverse and grant defendants' motion, in the following memorandum.
Plaintiffs were improperly granted relief from a conditional order of preclusion for failure to serve a bill of particulars. In view of the legislative overruling of Barasch/Eaton (CPLR 2005, L 1983, ch 318, § 1), the court now has discretion to excuse law office failures. In exercising this discretion we have held that the court should apply pre- Barasch standards ( Eldre Components v Comten, Inc., 97 A.D.2d 940). Pre- Barasch, "[t]ime and again we have held that conditional orders of preclusion for failure to serve a bill of particulars may not be disregarded with impunity, and that in the absence of extraordinary and exceptional circumstances it is an abuse of discretion by Special Term to grant relief from such an order" ( Le Frois Foods Corp. v Aetna Ins. Co., 47 A.D.2d 994; see, also, Nessia v Marrone, 59 A.D.2d 1054). Plaintiffs have failed to show any extraordinary and exceptional circumstances that would excuse their delay in failing to comply with the court order, Special Term's holding that "the infancy of one of the plaintiffs herein is such an extraordinary and exceptional circumstance" was error since plaintiffs' failure to serve their bill of particulars was not related in any way to the child's infancy (see Williams v Town of Irondequoit, 59 A.D.2d 1049). ¶ We have also held that "'the greater the merit of the case the more excusable the delay and the greater would be the injustice of dismissal'" ( Hubley v Nationwide Mut. Fire Ins. Co., 65 A.D.2d 946, 947, quoting Sortino v Fisher, 20 A.D.2d 25, 32). Here, plaintiffs failed not only to establish a reasonable excuse for the delay, but also to demonstrate the merit of their causes of action. ¶ The court may not grant relief from a default in the absence of an affidavit of merit containing evidentiary facts attested to by an individual with personal knowledge of the facts ( Raphael v Cohen, 62 N.Y.2d 700; Barasch v Micucci, 49 N.Y.2d 594, 599). The affidavit of plaintiffs' counsel, who lacked personal knowledge of the facts, has no probative value (see Andreano v Testa, 64 A.D.2d 1019; Klinger v Dudley, 40 A.D.2d 1078, 1079). The verified bill of particulars cannot serve as an affidavit of merit since it contains no evidentiary facts but only conclusory statements of what the plaintiffs claim to be the negligence of the defendant.