McMahon v. Metropolitan Life Insurance

277 A.D.2d 50, 715 N.Y.S.2d 146, 2000 N.Y. App. Div. LEXIS 11278

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about December 17, 1999, which denied, with leave to renew, plaintiff-respondent’s motion to restore the action to the calendar, unanimously affirmed, without costs.

Since the requisites for restoration were otherwise satisfied, and there was indication that plaintiff, in this case of alleged elevator misleveling in which the doctrine of res ipsa loquitur may have application (see, e.g., Dickman v Stewart Tenants Corp., 221 AD2d 158), may well have a meritorious cause of action, the motion court exercised its discretion appropriately in affording plaintiff another opportunity to demonstrate the merits of his case. Concur — Nardelli, J. P., Tom, Wallach and Andrias, JJ.