| Goodwin v New York City Hous. Auth. |
| 2010 NY Slip Op 08614 [78 AD3d 550] |
| November 23, 2010 |
| Appellate Division, First Department |
| Charlie Goodwin, Jr., et al., Appellants, v New York CityHousing Authority, Respondent. |
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Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about June 12, 2009,which, in an action for personal injuries sustained from a fall down a staircase in defendant's building,denied plaintiffs' motion to vacate a prior order that had dismissed the action pursuant to 22 NYCRR202.27 (b) for their attorney's failure to appear at a preliminary conference, unanimously reversed, onthe law, without costs, the motion granted, and the complaint reinstated.
A court should vacate a default upon the showing of a meritorious claim and a reasonable excusefor failure to appear (Jones v New York CityHous. Auth., 13 AD3d 489 [2004]). The showing of merit necessary to vacate a 22 NYCRR202.27 default is less than what is necessary for opposing a motion for summary judgment (see Caso v Manmall, Inc., 68 AD3d470, 472 [2009], citing Levy v New York City Hous. Auth., 287 AD2d 281 [2001]).Plaintiffs' evidence, at this predisclosure stage—in particular, their attorney's affirmation attachingphotographs described as "indicating the condition of the stairs at the time of plaintiff's accident," anddepicting a staircase in a state of disrepair and containing debris—is sufficient to show ameritorious cause of action. The attorney's present inability to say who took the photographs and whenthey were taken is a curable defect that, at this juncture, should not result in dismissal of the action. Norshould the injured plaintiff's testimony at a General Municipal Law § 50-h hearing in October2003, when he was unable to state what caused him to fall, be grounds for dismissal (see Hecker vNew York City Hous. Auth., 245 AD2d 131 [1997]). We note that the accident occurred fully ayear prior to that testimony; that an amended notice of claim, filed through the same attorney in January2003, just 10 days after the first notice, described the stairs as "broken/cracked/chipped [and] coveredwith debris" (42 AD3d 63, 65 [2007]); and that plaintiffs have submitted evidence that the fall ondefendant's stairs was allegedly so severe that it not only caused the injured party's quadriplegia, butalso adversely affected his ability to remember the accident.
Law office failure may constitute a reasonable excuse for a default (see Dokmecian v ABNAMRO N. Am., 304 AD2d 445 [2003] [counsel inadvertently scheduled the wrong date for thepreliminary conference]). Here, under the circumstances (including counsel's stressful preoccupationwith the health of a close family member), a one-time default at a preliminary [*2]conference that plaintiffs had requested after remand from this Courtshould not result in dismissal of the action (CPLR 2005; see Mediavilla v Gurman, 272 AD2d146, 148 [2000]), especially in light of the strong public policy in this state for disposing of cases ontheir merits (see Hyde Park Motor Co., Inc.v Sucato, 24 AD3d 724 [2005]).
This Court is all too familiar with this case, having reversed Supreme Court's wrongful dismissal ofthe complaint once before for labeling a correction to the original notice of claim as a "second" notice(42 AD3d at 66). The lawsuit stemming from this eight-year-old accident has now survived twomistaken dismissals. No discovery has taken place. It is time for discovery to commence and finishexpeditiously so that plaintiffs' claims may be addressed on their merits. Concur—Gonzalez, P.J.,Tom, Catterson, Moskowitz and Richter, JJ.