La Sala v. Cornell

292 A.D.2d 256, 738 N.Y.S.2d 846, 2002 N.Y. App. Div. LEXIS 3076

Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered December 5, 2000, which denied plaintiffs’ motion to restore the action to the trial calendar, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the action restored to the trial calendar.

Upon review of the record and in light of the strong public policy in favor of resolving cases on their merits, we find that the motion court improvidently exercised its discretion in denying plaintiffs’ motion to restore pursuant to CPLR 3404. The statement of plaintiffs’ medical expert submitted in support of their motion, specifically setting forth the acts and omissions which constitute the alleged malpractice committed by defendants, reveals material questions of fact and, thus, a meritorious action. This, together with the fact that defendants at no time sought summary dismissal prior to the time when the case was originally trial ready, militates against the granting of summary relief. Further, plaintiffs have demonstrated a reasonable excuse for the delay, a lack of an intent to abandon the case, and an absence of prejudice to defendants (see, Leonardelli v Presbyterian Hosp., 288 AD2d 105). Concur — Williams, P.J., Andrias, Lerner and Marlow, JJ.