| Cruz v Bronx Lebanon Hosp. Ctr. |
| 2010 NY Slip Op 04271 [73 AD3d 597] |
| May 20, 2010 |
| Appellate Division, First Department |
| Nancy Cruz, Respondent, v Bronx Lebanon HospitalCenter, Appellant. |
—[*1] Burns & Harris, New York (Christopher J. Donadio of counsel), for respondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered October 13, 2009, which,inter alia, upon reargument and renewal, restored the case to the active calendar, unanimouslyaffirmed, without costs.
Plaintiff commenced this action for personal injuries she allegedly sustained when she fellon defendant's premises. The complaint was subsequently dismissed pursuant to 22 NYCRR202.27 (b) based on substitute counsel's failure to appear at a pre-note status conference. Sinceno note of issue was filed in this case, plaintiff was only required to state a reasonable excuse forher failure to appear and to establish that her action has merit (see Eugene Di Lorenzo, Inc. vA.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; CPLR 5015 [a]).
Here, plaintiff demonstrated that her failure to appear at the scheduled conference wasneither willful nor part of a pattern of dilatory behavior, but the result of inadvertent law officefailure (see Caso v Manmall, Inc.,68 AD3d 470 [2009]; TravelersIns. Co. v Abelow, 14 AD3d 395 [2005]; Harwood v Chaliha, 291 AD2d 234[2002]; CPLR 2005). Furthermore, plaintiff's affidavit was sufficient to establish a meritoriousclaim for purposes of her motion to restore. While the affidavit of merit may have been factuallyscant, this may be attributed to the small amount of discovery completed in this case (see Feders v Lamprecht, 43 AD3d276 [2007]).
Contrary to defendant's contention, the motion court correctly styled plaintiff's motion as oneto renew (see Garner v Latimer, 306 AD2d 209 [2003]; Telep v Republic El.Corp., 267 AD2d 57, 58 [1999]), which may be granted in the court's discretion, in theinterest of justice, even on facts that were known to the movant at the time of the original motion(see Rancho Santa Fe Assn. vDolan-King, 36 AD3d 460, 461 [2007]). Indeed, "even if the vigorous requirements forrenewal are not met, such relief may still be properly granted so as not to defeat substantialfairness" (Garner, 306 AD2d at 210 [internal quotation marks and citations omitted]).[*2]
We have considered defendant's remaining contentionsand find them unavailing. Concur—Saxe, J.P., Catterson, Renwick, Richter andAbdus-Salaam, JJ.