Opinion
April 6, 1967
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Henry, Del Vecchio and Marsh, JJ.
Order unanimously reversed, without costs, and motion denied with leave to plaintiffs to move to vacate the dismissal of their action upon proper papers including an affidavit of merits to be furnished by the parties plaintiff. Memorandum: Plaintiffs' action was placed on the general docket on May 6, 1965 and on May 7, 1966 it was deemed abandoned and dismissed. On August 4, 1966 plaintiffs moved on the affidavit of their attorney to vacate the dismissal and restore the action to the Trial Calendar. Although it was shown that during the year that the case was on the general docket there was an examination of one of the plaintiffs before trial on June 3, 1965 and an amended complaint was served on February 1, 1966, there was no affidavit of merits submitted by the parties. The affidavit of plaintiffs' attorney did not satisfy the rule that a showing of merits must be made by a party or another person with knowledge of the facts which must contain evidentiary facts establishing a viable cause of action ( Sortino v. Fisher, 20 A.D.2d 25, 32; Barnett Co. v. St. Paul Fire Marine Ins. Co., 7 A.D.2d 897; Frenia v. Patno, 25 A.D.2d 591).