MYERS v. Garmer Industries, Inc., third-party defendant-appellant, et al., third-party defendant. (2008)

In an action to recover damages for personal injuries, the defendant third-party plaintiff and the third-party defendant separately appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated August 9, 2007, which granted the plaintiffs' motion to restore the action to the active calendar and to extend the time to file a note of issue.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion to restore the action to the active calendar and to extend the time to file a note of issue is denied.

To excuse their default and to restore this action to the active calendar, the plaintiffs were required to demonstrate a justifiable excuse for their failure to timely file the note of issue, and a meritorious cause of action (see CPLR 3216[e];  Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460;  Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119;  Amato v. Commack Union Free School Dist., 32 A.D.3d 807, 821 N.Y.S.2d 230;  Chaudhry v. Ziomek, 21 A.D.3d 922, 924, 801 N.Y.S.2d 603).   Here, the tendered excuse failed to adequately explain the plaintiffs' failure to timely file a note of issue (see Taylor v. Gari, 287 A.D.2d 557, 731 N.Y.S.2d 648;  Turman v. Amity OBG Assoc., 170 A.D.2d 668, 567 N.Y.S.2d 87;  Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483;  Meth v. Maimonides Med. Ctr., 99 A.D.2d 799, 472 N.Y.S.2d 134).

Moreover, the plaintiffs failed to demonstrate a meritorious cause of action.   As the complaint was verified only by the plaintiffs' attorney, who had no personal knowledge of the facts, it was insufficient to establish the merits of the case (see Salch v. Paratore, 60 N.Y.2d 851, 470 N.Y.S.2d 138, 458 N.E.2d 379;  Juseinoski v. Board of Educ. of City of N.Y., 15 A.D.3d 353, 790 N.Y.S.2d 162;  McKenna v. Solomon, 255 A.D.2d 496, 681 N.Y.S.2d 59;  Peterson v. Scandurra Trucking Co., 226 A.D.2d 691, 692, 642 N.Y.S.2d 540).   Further, the unsigned and unsworn deposition transcript attached to the plaintiffs' reply papers was not in admissible form and could not supply the basis for a showing of a meritorious cause of action (see Santos v. Intown Assoc., 17 A.D.3d 564, 793 N.Y.S.2d 477;  Lalli v. Abe, 234 A.D.2d 346, 650 N.Y.S.2d 313).