SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
February 20, 1969
MARTHA KESSLER, AS ADMINISTRATRIX OF THE ESTATE OF LOUIS NUDELMAN, DECEASED, RESPONDENT,
MILDRED WENK ET AL., APPELLANTS
Concur -- Stevens, P. J., Tilzer, McGivern, McNally and Bastow, JJ.
In our opinion, the motion papers require amplification as to the nonabandonment of the action and do not satisfy the rule that a showing of merits must be made by one with knowledge of the facts indicating a viable cause of action.
Order entered September 26, 1968 granting plaintiff's motion to vacate a dismissal of the action and restoring the action to the Trial Term Calendar, reversed, on the law and the facts, with $30 costs and disbursements to appellants, and the motion denied with leave to plaintiff to renew the motion at Special Term upon proper papers including an affidavit of merits to be furnished by a person having knowledge of the facts.
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