Penn v. American Airlines, Inc.

—Order, Supreme Court, New York 386 County (Walter Schackman, J.), entered on or about March 2, 1992, which, upon renewal and reargument, granted plaintiffs motion seeking to vacate the April 15, 1991 order of the same court denying plaintiffs motion to vacate a conditional order of dismissal, dated November 30, 1990, and vacated that conditional order of dismissal, and which directed the Trial Term Support Office to reinstate the underlying action, unanimously affirmed, with costs. The IAS Court did not abuse its discretion in vacating the November 30, 1990 conditional order of dismissal, based upon plaintiffs counsel’s failure to appear at a November 30, 1990 conference, where, the record reveals that the plaintiff complied with the court’s condition, requiring the plaintiff or her counsel to seek vacatur within 30 days of service of a copy of the order with notice of entry, by timely moving to vacate on January 14, 1991, within 35 days after the conditional order was served by mail upon plaintiffs counsel on December 10, 1990 (CPLR 2103 [b] [2]; Corradetti v Dales Used Cars, 102 AD2d 272), and that the plaintiff demonstrated a justifiable excuse for the delay, by reason of counsel’s terminal illness, and a good and meritorious cause of action as against the respective defendants pursuant to CPLR 3216 (e) so as to defeat their motion to dismiss (LeCesse Bros. Contr. v Rochester Gas & Elec. Corp., 101 AD2d 1021). Vacatur of the conditional order of dismissal is therefore in conformity with the strong public policy of this State that matters be disposed of on the merits in the absence of real prejudice (Lang v French & Co., 48 AD2d 641). We have reviewed the appellants’ remaining claims and find them to be without merit. Concur — Sullivan, J. P., Milonas, Kassal and Rubin, JJ.