| Santiago v Santana |
| 2008 NY Slip Op 07111 [54 AD3d 929] |
| September 23, 2008 |
| Appellate Division, Second Department |
| William Santiago, Respondent, v Raphael Santana et al.,Appellants. |
—[*1] Laub & Delaney, LLP, White Plains, N.Y. (Diane Welch Bando, Montgomery J. Delaney,and Alfred C. Laub of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Westchester County (Colabella, J.), entered October 17, 2007, which grantedthe plaintiff's motion, in effect, to vacate a judgment of the same court (Barone, J.), dated June27, 2006, which, upon a prior order of the same court dated April 4, 2006, granting thedefendants' motion to dismiss the complaint upon his default in proceeding with trial, dismissedthe complaint.
Ordered that the order entered October 17, 2007 is reversed, on the law, with costs, thejudgment and the order dated April 4, 2006 are reinstated, and the motion is denied.
An action dismissed pursuant to 22 NYCRR 202.27 (b) may be restored if the plaintiffdemonstrates both a reasonable excuse for the default and a meritorious cause of action(see CPLR 5015 [a] [1]; Psomatithis v Transoceanic Cable Ship Co., Inc., 39 AD3d 837,838 [2007]; Watson v New York CityTr. Auth., 38 AD3d 532 [2007]; Zeltser v Sacerdote, 24 AD3d 541, 542 [2005]). Even if theplaintiff's former attorney was responsible for both the lengthy delay in proceeding with trial andthe plaintiff's failure to appear on the last three scheduled trial dates, where there is a pattern ofdefault and neglect, the negligence of the attorney is properly imputed to the client (see Dave Sandel, Inc. v Specialized Indus.Servs. Corp., 35 AD3d 790, 791 [2006]; Edwards v Feliz, 28 AD3d 512 [2006]; MRI Enters. vAmanat, 263 AD2d 530, 531 [1999]). Thus, the plaintiff failed to demonstrate a reasonableexcuse for his default. Furthermore, the plaintiff failed to submit any medical evidencedemonstrating that he sustained a [*2]serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Louis v MTA Long Is. Bus Co., 44AD3d 628 [2007]; Rezene vWilliams, 22 AD3d 656 [2005]; Uddin v Mirza, 10 AD3d 722 [2004]). Accordingly, the plaintiff'smotion, in effect, to vacate the judgment dismissing the complaint should have been denied.Spolzino, J.P., Miller, Dickerson and Eng, JJ., concur.