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ROBERT WALKER et al., Respondents, v. TOWN OF LOCKPORT et al., Defendants, and DICKINSON'S EQUIPMENT, INC., et al., Appellants.

Order unanimously reversed, without costs, and appellants' motions to dismiss granted. Memorandum: It was an abuse of discretion for Special Term to excuse plaintiffs' failure to comply with defendants' CPLR 3216 demand to file a note of issue. "In order to defeat a CPLR 3216 motion to dismiss for failure to prosecute, a party must show `justifiable excuse for the delay and a good and meritorious cause of action' (CPLR 3216, subd [e]). The affidavit of merit must contain evidentiary facts which establish a viable cause of action; it must be 'as good as the kind of affidavit which could defeat a motion for summary judgment on the ground that there is no issue of fact' ( Sortino v. Fisher, 20 A.D.2d 25, 32)" ( Jones v. First Fed. Sav. Loan Assn., 101 A.D.2d 1005). Inasmuch as plaintiffs filed no answering papers in response to defendants' motion, they have established neither a justifiable excuse for the delay nor that their cause of action has merit.

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WALKER v. TOWN OF LOCKPORT
(Mar 1, 1985)