Convenient Service Center, Inc. v. Badu

1 A.D.2d 212, 767 N.Y.S.2d 222, 1 A.D.3d 212, 2003 N.Y. App. Div. LEXIS 11907

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Charles Ramos, J.), entered February 4, 2003, which granted plaintiffs motion pursuant to CPLR 5015 (a) to vacate a prior order of the same court and Justice dismissing the complaint pursuant to CPLR 3126 for failure to comply with court-ordered discovery, unanimously affirmed, without costs.

The motion court had the power to vacate, pursuant to CPLR 5015 (a), an order previously issued by it dismissing a complaint pursuant to CPLR 3126 (Alvarez v Fiat Realty Corp., 157 AD2d 456 [1990]), and properly exercised that power in this case where plaintiffs assertions that prior counsel withheld information as to its discovery obligations are sufficient to establish the excuse of law office failure and defendants have failed to offer sufficient evidence that they have been prejudiced by the passage of time. Concur — Saxe, J.E, Sullivan, Rosenberger, Friedman and Gonzalez, JJ.