Opinion
June 2, 1986
Appeal from the Supreme Court, Nassau County (Burke, J.).
Order affirmed, with one bill of costs.
Special Term properly granted the respective motions to dismiss the complaint insofar as it is asserted against the defendants Pro-Chem Company, Inc. and Linde Division of Union Carbide Corp., on the ground that the plaintiff's service of the complaint was untimely under CPLR 3012. While CPLR 2005 provides that, "[u]pon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interest of justice to excuse delay or default resulting from law office failure", there must still be a reasonable excuse for the delay and a meritorious claim (see, Fidelity Deposit Co. v. Andersen Co., 60 N.Y.2d 693; Heffney v Brookdale Hosp. Center, 102 A.D.2d 842; Mineroff v. Macy's Co., 97 A.D.2d 535). The plaintiff failed to make an adequate showing that his claim has legal merit. It must be noted in that regard that the plaintiff did not submit an affidavit of merit and his attorney's affirmation was not a valid substitute as it was not based upon personal knowledge and did not set forth sufficient evidentiary facts relating to the plaintiff's action (see, Kel Mgt. Corp. v. Rogers Wells, 64 N.Y.2d 904; Salch v. Paratore, 60 N.Y.2d 851; A J Concrete Corp. v. Arker, 54 N.Y.2d 870; Egan v Federated Dept. Stores, 108 A.D.2d 718). Further, while a complaint which is verified based on personal knowledge may be used as an affidavit (CPLR 105 [t]), the plaintiff's verified complaint was devoid of any evidentiary facts or detail regarding the respondents' acts of negligence so as to constitute a sufficient affidavit of merit (see, Egan v. Federated Dept. Stores, supra; Klenk v. Kent, 103 A.D.2d 1002; Luksic v. Killmer, 100 A.D.2d 864; Tonello v Carborundum Co., 91 A.D.2d 1169, affd 59 N.Y.2d 720; Investment Corp. v. Spector, 12 A.D.2d 911). In view of the plaintiff's failure to establish a meritorious claim, we do not consider the question of whether the plaintiff had a reasonable excuse for the delay in serving the complaint. Mangano, J.P., Gibbons, Niehoff and Spatt, JJ., concur.