Berner v. MCV Products, Inc.

171 A.D.2d 1041, 579 N.Y.S.2d 600, 1991 N.Y. App. Div. LEXIS 6772

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1991
• Status: Published

Opinion

Order unanimously reversed in the exercise of discretion without costs, motion granted and complaint reinstated. Memorandum: The court erred in granting reargument of defendant’s motion to dismiss for failure to prosecute and in adhering to its prior order granting that motion. Plaintiffs alternative motion to vacate the prior order based on excusable default (CPLR 5015) was the procedurally proper vehicle, rather than a motion to reargue, and we grant that motion in the exercise of our discretion. We find that plaintiff met his burden of showing a sufficient excuse for the default in opposing the motion to dismiss for failure to prosecute, a justifiable excuse for the default in filing a note of issue pursuant to defendant’s 90-day demand, and a meritorious cause of action (CPLR 3216 [e]; 5015 [a] [1]; see, e.g., Miniotis v Dugan Bros., 44 AD2d 708; see also, Siragusa v Teal’s Express, 96 AD2d 749). (Appeal from Order of Supreme Court, Niagara County, Mintz, J. — Dismiss Action.) Present— Doerr, J. P., Green, Pine, Lawton and Davis, JJ.