Bazin v. Avis Rent A Car System, Inc.

265 A.D.2d 518, 696 N.Y.S.2d 875, 1999 N.Y. App. Div. LEXIS 10807

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Avis Rent A Car System, Inc., appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated January 21, 1999, which granted the plaintiffs’ motion to vacate the dismissal of the action upon the failure of the plaintiffs’ counsel to appear at a calendar conference upon the condition, inter alia, that the plaintiffs file a note of issue within 120 days.

Ordered that the order is affirmed, with costs.

The action was dismissed because the plaintiffs’ counsel failed to appear at a calendar conference. To vacate the order of dismissal, the plaintiffs had to demonstrate a reasonable excuse for the default and a meritorious cause of action (see, CPLR 5105 [a] [1]; Martinez v Otis El. Co., 213 AD2d 523). The plaintiffs did so. Accordingly, the Supreme Court did not improvidently exercise its discretion in conditionally granting the plaintiffs’ motion to vacate the dismissal of the action (see, Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831). Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.