Opinion
January 18, 1971
In a negligence action to recover damages for personal injuries, defendant International Operating Co., Inc. appeals from an order of the Supreme Court, Queens County, dated August 5, 1970, which granted plaintiff's motion for leave to file a statement of readiness and to restore the action to the Trial Calendar. Order reversed, without costs, and motion denied without prejudice to renewal upon proper papers. In our opinion, it was an improvident exercise of discretion to permit plaintiff to file a belated statement of readiness and to restore the case to the Trial Calendar on the sole proviso that he file therewith an affidavit of merits. The function of an affidavit of merits is not a mere formality. Such affidavit is designed to reveal "not only * * * that plaintiff has a viable cause of action, but also * * * whether there has been a deliberate neglect of an action of little or no value, or whether the delay has another explanation" ( Sortino v. Fisher, 20 A.D.2d 25, 32). We have held that "A mere recital of the conclusory allegations of the complaint * * * will not suffice. Neither will an affidavit * * * made by an attorney who has no personal knowledge * * *. Statements under oath of an evidentiary nature must be presented from which a determination may be made: (1) as to whether the proffered excuse is valid, and (2) as to whether evidence exists to support the allegations of the complaint. Every party who invokes the processes of the court has the duty to go forward with reasonable dispatch. When he fails to do so, the burden falls upon him not only to explain the delay but also to establish by sworn proof the soundness of his cause of action" ( Keating v. Smith, 20 A.D.2d 141, 142 [emphasis in original]). Accordingly, the motion should have been denied with leave to renew upon proper papers ( Keating v. Smith, supra). Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.