LUNDY v. TIMM

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Supreme Court, Appellate Division, Second Department, New York.

Cipriana LUNDY, etc., appellant, v. Levi D. TIMM, et al., respondents.

Decided: September 27, 1999

GUY JAMES MANGANO, P.J., CORNELIUS J. O'BRIEN, THOMAS R. SULLIVAN and GLORIA GOLDSTEIN, JJ. Ginsberg & Broome, LLP, New York, N.Y. (Robert M. Ginsberg of counsel), for appellant. Max Cohen, New York, N.Y., for respondents.

In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated November 4, 1998, which denied her motion to restore the action to the trial calendar.

ORDERED that the order is affirmed, with costs.

 In order to restore her case to the trial calendar, the appellant was required to establish “[a]ll of the components” of a four-part test which required proof not only of lack of intent to abandon the action but also proof of the merits of the action, lack of prejudice to the nonmoving party, and a reasonable excuse for the delay (see, Ornstein v. Kentucky Fried Chicken of Great Neck, 121 A.D.2d 610, 611, 503 N.Y.S.2d 643;  see also, Ford v. Empire Med. Group, 123 A.D.2d 820, 507 N.Y.S.2d 436).   To establish the merits of her cause of action, the infant plaintiff submitted her own affidavit, stating that she recalled that when she was two years old, she fell into a bathtub containing water that was “incredibly hot”, and sustained severe burns.   This affidavit, on its face, was insufficient.   The affidavit did not state how the defendants' negligence constituted a proximate cause of the accident.   Therefore, the appellant failed to submit sufficient proof of merit to justify restoring her action to the trial calendar (see, Ornstein v. Kentucky Fried Chicken of Great Neck, supra, at 611, 503 N.Y.S.2d 643).

MEMORANDUM BY THE COURT.

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