Rivera v. Luzada

—In an action to recover damages for personal injuries, the Motor Vehicle Accident Indemnification Corporation appeals from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated June 13, 1997, as granted that branch of the plaintiffs motion which was to vacate the dismissal of the action and directed the appellant to interpose an answer in the action on behalf of the defendant Jorge Luzada within 60 days. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court dismissed the instant action when the plaintiff failed to appear for a scheduled conference. To vacate the dismissal of the action, the plaintiff was required to demonstrate a reasonable excuse for the default and a meritorious cause of action (see, CPLR 5015 [a] [1]; Campbell v Dutton Stor. Distrib. Co., 240 AD2d 690; McNeil v Milstein, 240 AD2d 549). The appellant Motor Vehicle Accident Indemnification Corporation (hereinafter the MVAIC) failed to challenge either that the plaintiff had such an excuse for failing to appear, or had a meritorious cause of action against the uninsured defendant. Under the circumstances, the Supreme Court properly exercised its discretion by granting the application to vacate the dismissal of the action. While the MVAIC disputes whether the plaintiff filed a timely claim against it (see, Insurance Law § 5208), any issue in this regard was resolved against the MVAIC by a prior order of the same court, dated February 6, 1995, which is not now before us, and which granted the plaintiffs motion to direct the MVAIC to interpose an answer on behalf of the uninsured defendant. Bracken, J. P., Copertino, Joy and McGinity, JJ., concur.