Opinion
May 22, 1989
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
Contrary to the defendants' contentions, the Supreme Court did not err in denying their respective motion and cross motions to amend their answers to add the affirmative defense of immunity under the New York State Defense Emergency Act (McKinney's Uncons Laws of N Y § 9193; see, Fitzgibbon v County of Nassau, 147 A.D.2d 40). In their motion papers, the defendants failed to submit affidavits by persons having personal knowledge of the salient facts to substantiate their claims of immunity under the stated act (see, McCormack v Graphic Mach. Servs., 139 A.D.2d 631; Manginaro v Nassau County Med. Center, 123 A.D.2d 842; Berman v Berman, 111 A.D.2d 141). The affirmations of the defendants' respective counsel were insufficient to support the requested relief since they merely contained conclusory allegations (see, Anos Diner v Pitios Gourmet, 100 A.D.2d 948; De Rosa v Di Benedetto, 86 A.D.2d 648).
Further, we find that the Supreme Court correctly exercised its discretion by denying the defendant Village of Farmingdale's motion, pursuant to CPLR 3126, to dismiss the complaint as against it. It cannot be said that the plaintiff was in willful default of the Supreme Court's order dated March 31, 1987 (see, Parascandola v Kaplan, 108 A.D.2d 738; cf., Zletz v Wetanson, 67 N.Y.2d 711). Bracken, J.P., Lawrence, Kunzeman and Kooper, JJ., concur.