Tyberg v. Neustein

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Torres, J.), dated July 21, 2004, which denied their motion to vacate the dismissal of the complaint pursuant to 22 NYCRR 202.27 (b), upon their counsel’s failure to appear on the date set for trial, and to restore the action to the trial calendar. Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings. The action was dismissed when the plaintiffs’ counsel failed to appear on the date set for trial (see 22 NYCRR 202.27 [b]). To be relieved of the default in appearing, the plaintiffs were required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CFLR 5015 [a] [1]; Solomon v Ramlall, 18 AD3d 461 [2005]; Echevarria v Waters, 8 AD3d 330 [2004]; Precision Envelope Co. v Marcus & Co., 306 AD2d 263, 264 [2003]). The affirmation of the plaintiffs’ counsel demonstrated a reasonable excuse for his failure to appear on the date of trial (see Bazzini v Hertz Corp., 183 AD2d 691 [1992]; Chery v Anthony, 156 AD2d 414, 416 [1989]; Berman v Brunswick Hosp. Ctr., 94 AD2d 736 [1983]; Hargett v Health & Hosps. Corp. of City of N.Y., 88 AD2d 633 [1982]). Furthermore, the plaintiffs demonstrated that they have a potentially meritorious cause of action (see Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 [1992]; Carnazza v Shoprite of Staten Is., 12 AD 3d 393 [2004]; Kopinska v Metal Bright Maintenance Co., 309 AD2d 633 [2003]; Rothstein v State of New York, 284 AD2d 130, 131 [2001]). Accordingly, the Supreme Court improvidently exercised its discretion in denying the motion. Prudent i, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.