| Goldstein v Meadows Redevelopment Co Owners Corp. I |
| 2007 NY Slip Op 09555 [46 AD3d 509] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Betty Goldstein, Appellant, v Meadows Redevelopment CoOwners Corp. I et al., Respondents. |
—[*1] Vincent D. McNamara, East Norwich, N.Y. (Karen J. Walsh of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Nassau County (Lally, J.), entered December 19, 2006, which denied hermotion to vacate the dismissal of the action based on her failure to timely file a note of issue, torestore the action to the trial calendar, and to extend her time to file a note of issue, and (2) anorder of the same court entered April 24, 2007, which denied her motion for leave to renew andreargue.
Ordered that the appeal from so much of the order entered April 24, 2007, as denied thatbranch of the motion which was for leave to reargue is dismissed, as no appeal lies from an orderdenying reargument; and it is further,
Ordered that the order entered April 24, 2007 is reversed insofar as reviewed, on the law andin the exercise of discretion, without costs or disbursements, that branch of the motion which wasfor leave to renew is granted and, upon renewal, the plaintiff's motion to vacate the dismissal ofthe action, to restore the action to the trial calendar, and to extend the time to file a note of issueis granted, the plaintiff's time to file a note of issue is extended until 60 days after service uponher of a copy of this decision and order, and the order entered December 19, 2006 is modifiedaccordingly; and it is further,
Ordered that the appeal from the order entered December 19, 2006 is dismissed as academicin light of our determination of the appeal from the order entered April 24, 2007.[*2]
In this personal injury action the plaintiff failed to timelyfile the note of issue pursuant to a pretrial conference order. The case was marked "dismissed" inthe court's files. Upon learning of the dismissal, the plaintiff's attorney moved to vacate thedefault in complying with the pretrial order, to restore the action to the trial calendar, and toextend the time for filing the note of issue. In support of the motion, the plaintiff's trial counselsubmitted an affidavit which asserted that the default was due to "law office failure," in partoccasioned by the illness and personal problems of the plaintiff's prior attorney. Also submittedby the plaintiff was an affidavit from the prior attorney alluding to his circumstances in a cursorymanner. The Supreme Court denied the motion.
The plaintiff moved for leave to renew and reargue. In support of that motion the plaintiffprovided greater specificity both as to the merits of the claim as well as the circumstancesimpairing the ability of the initial attorney to comply with the pretrial order in question. Insupport of this motion the attorney in question submitted a detailed affidavit itemizing thecircumstances in question including, inter alia, two hospitalizations, as well as othercircumstances of a highly personal and understandably embarrassing nature.
The Supreme Court should have granted that branch of the plaintiff's motion which was forleave to renew (see CPLR 2221 [e]), and upon renewal, granted the plaintiff's motion,inter alia, to vacate the dismissal of the action. In order to excuse the default and to restore thisaction to the calendar, the plaintiff was required to demonstrate a justifiable excuse for the failureto timely file the note of issue and proof of a meritorious claim (see CPLR 3216 [e];Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Serby v Long Is. Jewish Med. Ctr., 34AD3d 441 [2006]; Amato vCommack Union Free School Dist., 32 AD3d 807 [2006]; Chaudhry v Ziomek, 21 AD3d922, 924 [2005]). The plaintiff established that a meritorious action existed. Moreover, thecourt has the discretion to accept law office failure as a reasonable excuse (see CPLR2005), or to accept the ill physical or mental health of a litigant's attorney as an acceptable excusefor a default (see Amato v CommackUnion Free School Dist., 32 AD3d 807 [2006]; Fine v Fine, 12 AD3d 399 [2004]). Under the unique circumstancescontained in this record, it was an improvident exercise of that discretion to deny that branch ofthe plaintiff's motion which was for leave to renew the motion to vacate the default in complyingwith the pretrial order, to restore the action to the calendar, and to extend the time to file the noteof issue (see Valure v Century 21 Grand,35 AD3d 591 [2006]; RocklandTr. Mix, Inc. v Rockland Enters., Inc., 28 AD3d 630 [2006]; Tyberg v Neustein, 21 AD3d 896[2005]). Schmidt, J.P., Spolzino, Skelos, Lifson and McCarthy, JJ., concur.