Opinion
January 13, 2000
Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered March 18, 1999, which granted the motion of defendant Carol Management Corporation to dismiss the complaint as against it pursuant to CPLR 3216, granted the cross motion of defendant Brown, Harris, Stevens, Inc. to the extent of dismissing the complaint as against it pursuant to CPLR 3404, and denied plaintiff's cross motion to restore the case to the trial calendar, unanimously affirmed, without costs.
George Bassias for Plaintiff-Appellant.
Jon D. Lichtenstein and Ira J. Gold for Defendants-Respondents.
SULLIVAN, J.P., WILLIAMS, RUBIN, BUCKLEY, FRIEDMAN, JJ.
While plaintiff's health constituted a valid excuse for his failure to file the note of issue and to timely move to restore the case to the calendar (see, Weppler v. Pretium Assocs., 245 A.D.2d 249), plaintiff nonetheless failed to meet his additional burden of establishing a meritorious cause of action. Plaintiff's sole submission on the merits was a written decision of the Supreme Court, New York County, which permitted plaintiff to serve an amended complaint adding causes of action (CPLR 3025[b]), and dismissed some causes of action, while sustaining others (CPLR 3211[a][7]). Such a decision is insufficient to defeat a CPLR 3216 motion to dismiss, where the plaintiff must present an affidavit of merit, or its equivalent, from an individual having personal knowledge of the facts underlying the action (CPLR 3216[e]; Hy-Tech Coatings v. Middle Country Cent. School Dist., 266 A.D.2d 264, 1999 N.Y. App. Div. LEXIS 11327; Pub. Serv. Mut. Ins. Co. v. Zucker, 225 A.D.2d 308, 309; Russo v. Automotive Rentals, Inc., 247 A.D.2d 603). The decision upon which plaintiff relies decided no more than that the causes of action sustained were facially valid. It did not determine factual merit. Nor did plaintiff move to renew in order to submit a proper affidavit (see, Diaz v. New York Downtown Hosp., 262 A.D.2d 62, 691 N.Y.S.2d 467).
A submission from an individual with personal knowledge of the facts underlying the action is similarly required to restore to the calendar a case dismissed pursuant CPLR 3404 (Ramputi v. Timko Contr. Corp., 262 A.D.2d 26, 691 N.Y.S.2d 432;Muhammed v. Manhattan Payment Ctr., Inc., 251 A.D.2d 228).
We have reviewed plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.