Diaz v. New York Downtown Hospital

262 A.D.2d 62, 691 N.Y.S.2d 467, 1999 N.Y. App. Div. LEXIS 6420

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Edward Lehner, J.), entered April 6,1998, which, upon renewal, granted plaintiffs motion to vacate a prior order dismissing the action upon her failure to appear at a calendar call, and to restore the action to the calendar, unanimously affirmed, with costs.

Plaintiffs motion to renew was properly granted upon an adequate showing that her failure to submit an affidavit of merit in support of the first motion was inadvertent, and in the absence of any showing by defendants of prejudice attributable to the short delay caused by such failure (see, Pinto v Pinto, 120 AD2d 337, 338; Torrado v Lutheran Med. Ctr., 170 AD2d 666). Upon renewal, the default was properly vacated, and the action was properly restored to the calendar, upon a strong showing that plaintiffs failure to appear at the calendar call was due to confusion caused by the suspension of her attorney, and an affidavit of merit, the sufficiency of which defendants do not challenge. Concur — Williams, J. P., Wallach, Andrias and Friedman, JJ.