Uddaraju v. City of New York

Order, Supreme Court, New York County (Michael Stallman, J.), entered March 17, 2003, which granted plaintiffs motion to restore this action to the calendar, unanimously affirmed, without costs. This case was dismissed for plaintiffs failure to appear at a preliminary conference. Defendants argue that the court erred [141] in restoring the matter to the calendar because plaintiff failed to satisfy the criteria set forth in this Court’s decision in Ware v Porter (227 AD2d 214, 215 [1996]), requiring a movant to demonstrate “that the case has merit, that a reasonable excuse for the delay exists, the absence of an intent to abandon the matter, and a lack of prejudice to the non-moving party in the event the case is restored to the trial calendar.” However, these criteria apply to an application to vacate a dismissal where a case is deemed abandoned pursuant to CPLR 3404. Since no note of issue was ever filed in this case, dismissal was necessarily predicated on Uniform Rules for Trial Courts (22 NYCRR) § 202.27 (b), not CPLR 3404 (see Mediavilla v Gurman, 272 AD2d 146, 147 [2000]), and plaintiff is only required to state a reasonable excuse for her failure to appear and to establish that her action has merit (CPLR 5015 [a]; see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). “[L]aw office failure does not preclude the court from excusing a default or delay” (Mediavilla at 148; see also Harwood v Chaliha, 291 AD2d 234 [2002]). Plaintiff has provided a reasonable excuse for failure to appear at the preliminary conference due to her attorney’s neglect of matters entrusted to him, culminating in his disbarment (Matter of Katz, 274 AD2d 217 [2000]). Plaintiffs affidavit and accompanying medical documentation adequately demonstrate the merit of her action (see Mediavilla at 148) and, thus, Supreme Court providently exercised its discretion in restoring this matter to the calendar. Concur—Nardelli, J.P, Mazzarelli, Andrias, Sullivan and Lerner, JJ.