Giammanco v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: Giammanco v. City of New York, 507 N.Y.S.2d 895, 124 A.D.2d 642 (N.Y. App. Div. 1986)
• Decision Date: 10 November 1986
• Parties: Coreen GIAMMANCO, etc., Respondent, v. The CITY OF NEW YORK, et al., Appellants.

Page 895

507 N.Y.S.2d 895

124 A.D.2d 642

Coreen GIAMMANCO, etc., Respondent, v. The CITY OF NEW YORK, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Nov. 10, 1986.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Larry A. Sonnenshein and Elizabeth S. Natrella, of counsel), for appellants.

Taliuaga & Karsch, P.C., Staten Island (Alan J. Taliuaga, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, the defendants appeal from an order of the Supreme Court, Queens County (Lerner, J.), dated July 10, 1985, which granted the plaintiff's motion to restore the action to the trial calendar.

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

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. TSS Dept. Stores, 100 A.D.2d 838, 473 N.Y.S.2d 835; Pirnak v. Savino, 96 A.D.2d 857, 465 N.Y.S.2d 773; Monacelli v. Board of Educ. of City School Dist. of City of Mt. Vernon, 92 A.D.2d 930, 460 N.Y.S.2d 598). 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 A.D.2d 730, 481...