Opinion
May 28, 1993
Appeal from the Supreme Court, Niagara County, Joslin, J.
Present — Denman, P.J., Pine, Balio, Fallon and Boehm, JJ.
Order unanimously reversed on the law without costs and motion denied. Memorandum: On September 11, 1990, an order was entered dismissing this action, without prejudice, unless plaintiff served a verified complaint within 60 days of service of the order. That order, with notice of entry, was served upon plaintiff's attorney by mail on September 12, 1990. Plaintiff did nothing until March 11, 1991, when plaintiff's attorney forwarded a verified complaint to defendant's attorney. Defendant returned the complaint, refusing to accept service upon the ground that the action had been dismissed. Defendant did not serve an answer. Plaintiff then moved on July 15, 1991, for a default judgment or, in the alternative, for an order relieving plaintiff of his default and compelling defendant to serve an answer. Defendant appeals from an order directing him to serve an answer within 20 days of service of that order.
Plaintiff failed to proffer a reasonable excuse for failing to serve the complaint within the 60-day period provided in the court's conditional order of dismissal. Although plaintiff had asked a different attorney to represent him and that attorney had attempted to communicate with plaintiff's attorney of record within the 60-day period, no excuse has been proffered for the complete neglect of plaintiff's case by his attorney of record (cf., Smith v Fritz, 148 A.D.2d 438, lv dismissed 74 N.Y.2d 715). Moreover, the second attorney has failed to explain satisfactorily his unreasonable delay in seeking relief from the default upon expiration of the 60-day period. Although a verified complaint may serve as an affidavit of merit (see, CPLR 105 [t]), the subject complaint contains conclusory assertions and fails to set forth evidentiary facts in detail sufficient to establish a meritorious cause of action (see, Terranova v Gallagher Truck Ctr., 121 A.D.2d 621; Egan v Federated Dept. Stores, 108 A.D.2d 718; cf., Bethlehem Steel Corp. v Solow, 51 N.Y.2d 870, 872). Under the circumstances, Supreme Court improperly exercised its discretion in relieving plaintiff from his default in serving the complaint (see, Zent v Board of Educ., 174 A.D.2d 1047, 1048; Cox v Edmister, 122 A.D.2d 557, appeal dismissed 68 N.Y.2d 900, lv denied 69 N.Y.2d 603).