Casserley v. County of Westchester

235 A.D.2d 782, 652 N.Y.S.2d 557, 1997 N.Y. App. Div. LEXIS 304

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1997
• Status: Published

Opinion

White, J.

Appeal (transferred to this Court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Nastasi, J.), entered February 23, 1995 in Westchester County, which denied plaintiffs’ motion to reinstate the complaint and restore the case to the trial calendar.

Plaintiffs were involved in a motor vehicle accident while passengers in a bus that struck the rear of an automobile owned and operated by defendants County of Westchester, Liberty Lines Transit, Inc. and John Irizarry. Following the commencement of this action for personal injuries, Supreme Court dismissed plaintiffs’ complaint following their attorney’s failure to appear at a conference scheduled for January 5, 1995. Plaintiffs subsequently moved to vacate their default in appearance, to reinstate the complaint and to restore the case to the trial calendar. Supreme Court denied the motion and this appeal by plaintiffs ensued:

Initially, in order to restore a case to the trial calendar, plaintiffs must demonstrate a meritorious cause of action, a reasonable excuse for the default and the absence of prejudice to defendants (see, Solovay v Paone Corp., 219 AD2d 462; Dunne v McGuirk, 62 AD2d 1080). Here, plaintiffs have demonstrated a reasonable excuse for the default and have shown that they have an arguably meritorious cause of action. Further, there is no indication that defendants would be prejudiced if this matter is restored to the calendar. Under these circumstances and in view of the public policy in favor of resolving cases on their merits, plaintiffs’ motion should have been granted upon the condition that plaintiffs’ attorneys pay costs of $1,500 to the attorneys for defendants Santa O. Hall and Raymond T. Hall (see, Workman v Amato, 231 AD2d 627, 628; Coven v Trust Co., 225 AD2d 576; Centrillo v Route 6 & 22 Realty, 207 AD2d 371, 372).

Cardona, P. J., Mercure, Casey and Carpinello, JJ., concur. Ordered that the order is reversed, on the facts, and motion granted upon condition that plaintiffs’ attorneys pay $1,500 costs to the attorneys for defendants Santa O. Hall and Raymond T. Hall within 30 days of the date of this decision.