Willis v. Conkling 20 A.D.2d 932

In a negligence action to recover damages for personal injury and loss of services, defendant appeals from an order of the Supreme Court, Suffolk County, dated January 28, 1964, which granted plaintiffs’ motion to vacate a prior order dismissing the complaint for lack of prosecution pursuant to rule 3216 of the Civil Practice Law and Rules. Order of January 28, 1964, reversed, without costs, and motion denied. In our opinion, plaintiffs’ purported affidavit of merits is patently insufficient. It was not made by one having personal knowledge, nor does it set forth statements of an evidentiary nature which show that plaintiffs have provajble causes of action. In addition, the delay in the prosecution of the action cannot be justified by the mere claim that in the interim plaintiffs were attempting to learn the nature and extent of the injury and damage sustained (CPLR 3216; Keating v. Smith, 20 A D 2d 141; Sortino v. Fisher, 20 A D 2d 25). Beldoek, P. J., ICleinfeld, Christ, Brennan and Hopkins, JJ., concur.