Opinion
June 7, 1991
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Doerr, J.P., Green, Pine, Balio and Lawton, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: It is well settled that a party resisting a motion to dismiss for failure to comply with a 90-day demand must demonstrate a reasonable excuse for the failure to comply with the demand and a good and meritorious cause of action (CPLR 3216 [e]; Papadopoulas v R.B. Supply Corp., 152 A.D.2d 552; Charlotte Lake Riv. Assocs. v American Ins. Co., 130 A.D.2d 947, lv denied 70 N.Y.2d 605; McDonald v Song Mountain, 125 A.D.2d 1006, 1007; Cox v Edmister, 122 A.D.2d 557; Highlands Ins. Co. v Maddena Constr. Co., 109 A.D.2d 1071, 1072). In the absence of such a showing, it was an abuse of discretion for Special Term to deny defendant's motion to dismiss (see, Cox v Edmister, supra).
Here, plaintiffs wholly failed to make the required showing. The affidavit of plaintiffs' attorney does not attempt to explain the failure to comply with the demand, nor can it serve as an affidavit of merit because it is made by one with no personal knowledge of the facts (see, Charlotte Lake Riv. Assocs. v American Ins. Co., supra, at 947). Plaintiffs' affidavits are likewise insufficient because they are "couched in conclusory terms and merely paraphrase the complaint and bill of particulars" (Meth v Maimonides Med. Center, 99 A.D.2d 799, 800; see also, Billings v Berkshire Mut. Ins. Co., 149 A.D.2d 895, 897).