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Keppler v. Rosch

Appellate Division of the Supreme Court of New York, Second Department
Dec 23, 1991
178 A.D.2d 581 (N.Y. App. Div. 1991)

Opinion

December 23, 1991

Appeal from the Supreme Court, Westchester County (Walsh, J.).


Ordered that the order is affirmed, with costs.

It is well settled that in order to restore a matter which has been stricken from the trial calendar, the movant must produce evidence which (1) rebuts the presumption of abandonment, (2) demonstrates the merit of the underlying cause of action, and (3) shows that the defendant has not been prejudiced (Hillegass v Duffy, 148 A.D.2d 677; Rosser v Scacalossi, 140 A.D.2d 318). The plaintiff failed to offer a reasonable excuse for the two-year delay in moving to restore the action to the trial calendar, and also failed to submit an affidavit from a physician attesting to the merits of this malpractice action (see, Canter v Mulnick, 60 N.Y.2d 689). Accordingly, the Supreme Court acted properly when it refused to restore the action to the trial calendar. Mangano, P.J., Lawrence, Rosenblatt and O'Brien, JJ., concur.


Summaries of

Keppler v. Rosch

Appellate Division of the Supreme Court of New York, Second Department
Dec 23, 1991
178 A.D.2d 581 (N.Y. App. Div. 1991)
Case details for

Keppler v. Rosch

Case Details

Full title:ARLENE KEPPLER, as Administratrix of the Estate of ANNA C. SPRING…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 23, 1991

Citations

178 A.D.2d 581 (N.Y. App. Div. 1991)

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