ROWLEY v. CARL ZEISS INC (2000)

 Supreme Court erred in denying defendant's motion to dismiss the complaint pursuant to CPLR 3216 based upon plaintiffs' failure to comply with defendant's 90-day demand to file a note of issue.   Plaintiffs failed to file a note of issue or to move to vacate the demand or extend the time within which to file and thus, in order to avoid dismissal, plaintiffs were required to demonstrate a justifiable excuse for the delay and a meritorious cause of action (see, Geise v. Wetherill, 238 A.D.2d 952, 661 N.Y.S.2d 559;  see also, Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460).   The affidavit of plaintiffs' attorney, who lacks personal knowledge of the facts, is insufficient to establish a meritorious cause of action (see, Barton v. County of Monroe, 92 A.D.2d 746, 461 N.Y.S.2d 80), and the “generalized details” furnished in plaintiffs' complaint and bill of particulars are likewise insufficient (Hogan v. City of Kingston, 243 A.D.2d 981, 982, 663 N.Y.S.2d 380, lv. dismissed in part and denied in part 91 N.Y.2d 907, 669 N.Y.S.2d 254, 692 N.E.2d 123).

 We reject the contention of plaintiffs that no affidavit of merit is required because defendant caused or affirmatively contributed to the delay in filing a note of issue (cf., Tu Ying Chen v. Nash, 266 A.D.2d 279, 698 N.Y.S.2d 511;  Schoenhals v. Kissing Bridge Corp., 96 A.D.2d 711, 465 N.Y.S.2d 375).   Defendant's incomplete response to plaintiffs' document discovery demand was served 18 months prior to service of the 90-day demand upon plaintiffs, who failed to move to compel production of the documents either before or after service of the 90-day notice (see, Geise v. Wetherill, supra, at 953, 661 N.Y.S.2d 559).

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: