Vazquez v. Nearman

Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered on or about April 15, 1988, which denied plaintiffs motion to vacate the dismissal of his complaint occasioned by plaintiffs failure to appear at two preliminary conferences, unanimously reversed, on the law, the facts and in the exercise of discretion, plaintiffs motion is granted and the complaint reinstated, without costs. It is not disputed that on the dates both conferences were scheduled, namely on March 16 and June 8, 1987, plaintiff was unrepresented by counsel, because his attorney of record was under disciplinary suspension. At least in part due to this circumstance, plaintiff never received any notice that these conferences were to take place. The various notices directed by the court to be served by defendant were sent by defendant to an address where plaintiff never lived, 325 West 105th Street in Manhattan. Ineffective service of a notice, which pursuant to CPLR 321 (c) was required "personally” to be delivered to plaintiff, was attempted by leaving it with a supposed "neighbor” of plaintiff there. However, at all pertinent times during the pendency of this lawsuit, plaintiff resided either at 1581 Park Avenue in Manhattan or at 2045 Story Avenue in The Bronx. Plaintiff has also established that his action is meritorious in that he suffered serious personal injuries when his vehicle was struck by defendant’s automobile while the latter was proceeding against the flow of traffic on a one-way street. In light of the foregoing, it was clearly an abuse of discretion for the motion court to decline vacatur of this dismissal (Domlin Hair Design v La Duca, 134 AD2d 403; Conlin v Spath, 75 AD2d 1019). Defendant has shown no prejudice, and plaintiff, in addition to the merits of his case, had provided a wholly sufficient excuse for his nonappearance. Concur — Sullivan, J. P., Milonas, Kassal, Rosenberger and Wallach, JJ.