Opinion
February 14, 1966
Appeal from an order of the County Court of Clinton County which denied an application to restore a case 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 his associates was not available to try the case 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 the calendar call at the opening of that term. Neither does any sufficient reason appear for the failure to make the present motion for some 11 months. The answering affidavit claims prejudice in that certain witnesses cannot now be located. In the absence of any reasonable excuse for the delay, no basis exists for disturbing the exercise of the County Court's discretion. The order would have to be affirmed in any event because the moving papers are fatally defective as including no proper affidavit of merits. The attorney's averment that "deponent believes that the defendant has a meritorious counterclaim" falls far short of the requirement of an affidavit "by the party or another person with knowledge of the facts, [which] must contain evidentiary facts establishing * * * a viable cause of action * * * The more slender the excuse for the delay, the greater the 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.