| Myers v Polytechnic Preparatory Country Day School |
| 2008 NY Slip Op 03431 [50 AD3d 868] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Robert Myers et al., Respondents, v PolytechnicPreparatory Country Day School, Defendant and Third-Party Plaintiff-Appellant. GarmerIndustries, Inc., Third-Party Defendant-Appellant, et al., Third-PartyDefendant. |
—[*1] Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Jonathan A. Dachs of counsel),for third-party defendant-appellant. Talkin Muccigrosso & Roberts, LLP, New York, N.Y. (Zoe Dolan of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendant third-party plaintiff andthe 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 theactive 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 restorethe 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 wererequired to demonstrate a justifiable excuse for their failure to timely file the note of issue, and ameritorious cause of action (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co.,89 NY2d 499, 503 [1997]; Serby vLong Is. Jewish Med. Ctr., 34 AD3d 441 [2006]; Amato v Commack Union FreeSchool Dist., [*2]32 AD3d 807 [2006]; Chaudhry v Ziomek, 21 AD3d922, 924 [2005]). Here, the tendered excuse failed to adequately explain the plaintiffs'failure to timely file a note of issue (see Taylor v Gari, 287 AD2d 557 [2001];Turman v Amity OBG Assoc., 170 AD2d 668 [1991]; Papadopoulas v R.B. SupplyCorp., 152 AD2d 552 [1989]; Meth v Maimonides Med. Ctr., 99 AD2d 799 [1984]).
Moreover, the plaintiffs failed to demonstrate a meritorious cause of action. As the complaintwas verified only by the plaintiffs' attorney, who had no personal knowledge of the facts, it wasinsufficient to establish the merits of the case (see Salch v Paratore, 60 NY2d 851 [1983];Juseinoski v Board of Educ. of City ofN.Y., 15 AD3d 353 [2005]; McKenna v Solomon, 255 AD2d 496 [1998];Peterson v Scandurra Trucking Co., 226 AD2d 691, 692 [1996]). Further, the unsignedand unsworn deposition transcript attached to the plaintiffs' reply papers was not in admissibleform and could not supply the basis for a showing of a meritorious cause of action (see Santos v Intown Assoc., 17 AD3d564 [2005]; Lalli v Abe, 234 AD2d 346 [1996]). Rivera, J.P., Lifson, Miller, Carniand Eng, JJ., concur.