Opinion
October 27, 1980
In a wrongful death action, defendant appeals from an order of the Supreme Court, Kings County, dated September 20, 1979, which, inter alia, granted plaintiff's motion to compel defendant to accept service of the complaint. Order reversed, on the law, without costs or disbursements, plaintiff's motion to compel defendant to accept service of the complaint is denied and action is dismissed. In view of the plaintiff's delay of approximately 33 months in complying with defendant's demand for service of a complaint, the inadequacy of the plaintiff's excuse for such inordinate delay, and her failure to establish a meritorious cause of action by evidentiary facts attested to by an individual with personal knowledge (see Barasch v. Micucci, 49 N.Y.2d 594), it was an abuse of discretion to grant plaintiff's motion to compel defendant to accept service of the complaint. The conclusory averments contained in the affidavit of the attorney for the plaintiff cannot serve as an appropriate affidavit of merits since such affidavit must be made by an individual having personal knowledge of the facts (Barasch v. Micucci, supra). Special Term also erred in concluding that since the defendant had been afforded notice of the pending action by the prior service of a notice of claim, it had sustained no prejudice (see Verre v. Rosas, 47 N.Y.2d 795). Damiani, J.P., Titone, Mangano and Gibbons, JJ., concur.