Shillingford v. Eckert

In a personal injury action, the plaintiffs appeal from (1) an order of the Supreme Court, Queens County, dated February 26, 1980, [891] which denied their motion, inter alia, to vacate their default on a prior motion by defendants to strike the case from the Trial Calendar, and (2) a further order of the same court, dated April 8, 1980, which denied the same relief. Order dated February 26, 1980 reversed, without costs or disbursements, motion to vacate the default granted, and motion to strike the case from the Trial Calendar denied. Appeal from the order dated April 8, 1980 dismissed, without costs or disbursements. This order was actually one denying reargument from which no appeal lies. Under the circumstances of this case, plaintiff’s motion to vacate the order entered on their default should be granted. The circumstances which led to the order striking the case from the Trial Calendar, as recounted in the affirmation of plaintiffs’ counsel, were sufficient to constitute an excuse for their failure to comply with Trial Term’s order to file a note of issue by November 19, 1979 (cf. Spoor-Lasher Co. v J.E.H. Dev. Co., 58 AD2d 646; Kahn v Stamp, 52 AD2d 748; Batista v St. Luke’s Hosp., 46 AD2d 806). Hopkins, J. P., Titone, Lazer and Cohalan, JJ., concur.