Clayton-Garcia v. Moskin

256 A.D.2d 299, 682 N.Y.S.2d 614, 1998 N.Y. App. Div. LEXIS 13207

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants third-party plaintiffs Jeffrey Moskin d/b/a Briarwood Associates, Jeffrey Moskin, and Ailanthus Properties, Inc., appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated January 9, 1998, which granted the plaintiffs motion to vacate the automatic dismissal of the action and restore the action to the trial calendar.

Ordered that the order is modified, on the facts, by adding a provision thereto conditioning the granting of the plaintiffs motion on the payment of $1,500 by the plaintiffs attorneys to the attorneys for the defendants; as so modified, the order is affirmed, without costs or disbursements.

The defendants appeal the grant of the plaintiffs motion to restore this case to the trial calendar after it was dismissed pursuant to CPLR 3404. However, because the plaintiff adequately demonstrated a meritorious cause of action, a reasonable excuse for her delay, the absence of an intent to abandon the matter, and a lack of prejudice to the defendants, the court did not improvidently exercise its discretion in granting such relief (see, Robinson v New York City Tr. Auth., 203 AD2d 351; Roberson v City of New York, 195 AD2d 597; Hammer v Hochberg, 128 AD2d 834; Friedberg v Bay Ridge Orthopedic Assocs., 122 AD2d 194).

However, we have imposed costs of $1,500 upon the plaintiffs attorneys for their neglect in this matter as a condition to opening up the default. Bracken, J. P., Ritter, Santucci and Altman, JJ., concur.