Kessler v. Wenk

31 A.D.2d 798, 297 N.Y.S.2d 319, 1969 N.Y. App. Div. LEXIS 4549

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1969
• Status: Published

Opinion

Order entered September 26, 1968 granting plaintiff’s motion to vacate a dismissal of the action and restoring the action to the Trial Term Calendar, reversed, on the law and the facts, with $30 costs and disbursements to appellants, and the motion denied with leave to plaintiff to renew the motion at Special Term upon proper papers including an affidavit of merits to foe furnished by a person having knowledge of the facts. In our opinion, the motion papers require amplification as. .to the nonabandonment of the action and do not satisfy the rule .that a showing of merits must be made by one with knowledge of the facts indicating a viable cause of - action. Concur — Stevens, P. J., Tilzer, McGivern, McNally and Bastow, JJ.