Giammanco v. City of New York

Appellate Division of the Supreme Court of New York

Giammanco v. City of New York

124 A.D.2d 642, 507 N.Y.S.2d 895, 1986 N.Y. App. Div. LEXIS 61943

Appellate Division of the Supreme Court of the State of New York·Decided November 10, 1986·Published·Cited by 2 cases

Opinion

Under the rules of this court in effect at the time the plaintiff moved to restore this action to the Trial Calendar, the plaintiff was required to show "(1) the merits of the action; (2) the reasons for the acts or omissions wherefor it was struck from the calendar; and (3) good cause why it should be restored” (see, 22 NYCRR former 675.5 [b]; see also, Fluman v ISS Dept. Stores, 100 AD2d 838; Pirnak v Savino, 96 AD2d 857; Monacelli v Board of Educ., 92 AD2d 930). The affidavit of the plaintiff and affirmation of her attorney were not sufficient to sustain this burden because they were conclusory, not based on personal knowledge and unsupported by any corroborative documents or evidence (see, Harrison v Henderson, 105 AD2d 730; Rothenberg v Parkway Exterminating Co., 90 AD2d 497; Monahan v Fiore, 71 AD2d 914). It was therefore an abuse of discretion to grant the plaintiffs motion. Thompson, J. P., Bracken, Eiber and Spatt, JJ., concur.

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Under the rules of this court in effect at the time the plaintiff moved to restore this action to the Trial Calendar, the plaintiff was required to show "(1) the merits of the action; (2) the reasons for the acts or omissions wherefor it was struck from the calendar; and (3) good cause why it should be restored” (see, 22 NYCRR former 675.5 [b]; see also, Fluman v ISS Dept. Stores, 100 AD2d 838; Pirnak v Savino, 96 AD2d 857; Monacelli v Board of Educ., 92 AD2d 930). The affidavit of the plaintiff and affirmation of her attorney were not sufficient to sustain this burden because they were conclusory, not based on personal knowledge and unsupported by any corroborative documents or evidence (see, Harrison v Henderson, 105 AD2d 730; Rothenberg v Parkway Exterminating Co., 90 AD2d 497; Monahan v Fiore, 71 AD2d 914). It was therefore an abuse of discretion to grant the plaintiffs motion. Thompson, J. P., Bracken, Eiber and Spatt, JJ., concur.

Giammanco v. City of New York, 124 A.D.2d 642, 507 N.Y.S.2d 895, 1986 N.Y. App. Div. LEXIS 61943 (N.Y. Ct. App. 1986).

Pincite

124 A.D.2d 642 (Giammanco v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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