| Felsen v Stop & Shop Supermarket Co., LLC |
| 2011 NY Slip Op 02840 [83 AD3d 656] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Keri Felsen, Respondent, v Stop & Shop SupermarketCompany, LLC, Appellant. |
—[*1] Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Mark R.Bernstein of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), enteredAugust 20, 2010, as, in effect, granted those branches of the plaintiff's motion which were tovacate a prior order of the same court dated December 16, 2009, dismissing the action upon theplaintiff's failure to appear at a compliance conference, and to restore the action to the activecalendar.
Ordered that the order entered August 20, 2010, is affirmed insofar as appealed from, withcosts.
The action was dismissed when the plaintiff's attorney failed to appear at a complianceconference (see 22 NYCRR 202.27 [b]). To be relieved of the default in appearing at thatconference, the plaintiff was required to show both a reasonable excuse for the default and theexistence of a potentially meritorious cause of action (see CPLR 5015 [a] [1]; Marrero v Crystal Nails, 77 AD3d798, 799 [2010]; Siculan vKoukos, 74 AD3d 946, 947 [2010]; Chechen v Spencer, 68 AD3d 801, 802 [2009]; Barnave v United Ambulette, Inc., 66AD3d 620 [2009]). When the plaintiff's attorney appeared at the courtroom at 9:50 a.m., theassigned Justice was on the bench conducting an unrelated trial. After being informed by thedefendant's attorney of certain outstanding discovery, the plaintiff's attorney stepped away fromthe courtroom, inter alia, to make a telephone call to her office regarding this discovery. Whenthe plaintiff's attorney returned to the courtroom, she discovered that the action had beendismissed at 10:45 a.m. The plaintiff established a reasonable excuse for her default (see Rugieri v Bannister, 22 AD3d299 [2005], mod 7 NY3d 742 [2006]; Reices v Catholic Med. Ctr. of Brooklyn& Queens, 306 AD2d 394 [2003]; D'Aniello v T.E.H. Slopes, 301 AD2d 556, 558[2003]). Furthermore, the plaintiff's verified complaint and affidavit of merit set forth factssufficient to establish the existence of a potentially meritorious cause of action (see Zeltser v Sacerdote, 24 AD3d541, 542 [2005]; Bianco v LiGreci, 298 AD2d 482 [2002]; Anamdi vAnugo, 229 AD2d 408, 409 [1996]). Accordingly, the Supreme Court providently exercisedits discretion in granting those branches of the plaintiff's motion which were to vacate the priororder dismissing the action and to restore the action to the active calendar (see Rugieri v Bannister, 22 AD3d299 [2005]; Reices v Catholic Med. Ctr. of Brooklyn & Queens, 306 AD2d 394[2003]; D'Aniello v T.E.H. Slopes, 301 [*2]AD2d at558). Mastro, J.P., Angiolillo, Balkin, Lott and Miller, JJ., concur. [Prior Case History: 2010NY Slip Op 32291(U).]