Opinion
September 27, 1973
Order, Supreme Court, New York County, entered April 3, 1973, unanimously reversed, on the law, the facts and in the exercise of discretion, and the motion to restore the case to the Trial Calendar is denied. Appellants shall recover of respondents $40 costs and disbursements of this appeal. This action as to appellants was commenced in May, 1962 and issue joined June 25, 1962. There were five causes of action alleged in the complaint. The case was tried in September, 1970. During the trial four of the causes were dismissed and the jury failed to reach a verdict on the remaining cause. The case was then set down for the December 1970 Term for a new trial. After several adjournments the case was marked "off" calendar April 30, 1971 for the plaintiffs' nonappearance. By order entered November 4, 1971, Mr. Justice Rosenberg denied a motion to restore the action to the calendar with leave "to renew upon papers which shall include an affidavit of plaintiff showing merit to the action." Earlier, in August 1971, a request for a stipulation to restore had been declined by counsel for defendants and plaintiffs were referred to the retaining attorney. Plaintiffs apparently did nothing more until this motion in 1973 which resulted in the order appealed from. Plaintiffs have the burden of establishing the merit of the cause of action as well as offering an acceptable excuse for the delay involved ( Mingis v. Daitch Crystal Dairies, 32 A.D.2d 746; Sortino v. Fischer, 20 A.D.2d 25; Rist v. 234 East 33rd Corp., 4 A.D.2d 867). In this case the affidavit of merit is of the skimpiest. If the test be considered met, it would be only because at the trial the issue was submitted to the jury by the Trial Judge, and not by reason of the content of the affidavit. No reasonable or acceptable excuse is offered for the delay and this, when considered with the affidavit, warrants denial of the motion.
Concur — Stevens, P.J., Markewich, Nunez, Tilzer and Capozzoli, JJ.