Harrison v. Henderson

In an action to recover damages for assault, defendants St. Albans Realty and Alex Barveris appeal from an order of the Supreme Court, Queens County (Lerner, J.), dated March 19, 1984, which granted plaintiff’s motion to restore the matter to the Trial Calendar. Order reversed, on the law, without costs or disbursements, and motion denied, with leave to renew upon proper papers within 20 days after service upon plaintiff of a copy of the order to be made hereon, with notice of entry. It is required that a motion to restore an action struck from any calendar be supported by a proper statement of readiness and by affidavits showing the merits of the action, the reasons for the acts or omissions which caused it to be struck from the calendar, and good cause why it should be restored (22 NYCRR 675.5 [b]). The affidavit of merits must be provided by one with knowledge of the facts (Rothenberg v Parkway Exterminating Co., 90 AD2d 497). The plaintiff’s motion to restore his case to the Trial Calendar was not supported by any of the required showings and therefore should not have been granted. Accordingly, the order restoring the matter to the calendar is reversed and the motion denied, with leave to renew upon proper papers in accordance with subdivision (b) of section 675.5 of the rules of this court. Mangano, J. P., Gibbons, O’Connor and Lawrence, JJ., concur.