Frenia v. Patno

25 A.D.2d 591

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1966
• Status: Published

Opinion

Per Curiam.

Appeal from an order of the County Court of Clinton County which denied an application to restore a ease to the calendar from which it had been stricken. The attorney making the moving affidavit states no reason why neither he nor any of his associates answered the call of the calendar at any of four successive terms — those in February, May and October, 1963 and February, 1964 — or otherwise communicated with the court; nor, indeed, why neither he nor any of Ms associates was not available to try the ease at any of those terms; except as the affidavit indicates that deponent was engaged in trial elsewhere on the day that the case was stricken from the calendar for the February 1964 Term, that being some days after tbe calendar call at tbe opening of that term. Neither does any sufficient reason appear for tbe failure to make tbe present motion for some 11 months. Tbe answering affidavit claims prejudice in that certain witnesses cannot now be located. In tbe absence of any reasonable excuse for tbe delay, no basis exists for disturbing tbe exercise of tbe County Court’s discretion. The order would have to be affirmed in any event because tbe moving papers are fatally defective as including no proper affidavit of merits. Tbe attorney’s averment that “ deponent believes that tbe defendant has a meritorious counterclaim” falls far short of tbe requirement of an affidavit “by tbe party or another person with knowledge of tbe facts, [which] must contain evidentiary facts establishing * * * a viable cause of action * * * Tbe more slender the excuse for tbe delay, tbe greater tbe need to establish merit.” (Sortino v. Fisher, 20 A D 2d 25, 32.) Order affirmed, without costs.

Gibson, P. J., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.