Mizrachy v. Jordan

282 A.D.2d 210, 722 N.Y.S.2d 380, 2001 N.Y. App. Div. LEXIS 3365

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about May 3, 2000, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion to restore the matter to active status in this action to recover for personal injuries allegedly sustained when plaintiff was hit by an automobile, unanimously reversed, on the facts and in the exercise of discretion, without costs, and the motion granted.

The motion court’s refusal to vacate plaintiff’s default in failing to comply with an order requiring her to file a note of issue by a date certain was improper since plaintiff has demonstrated a meritorious cause of action, a reasonable excuse for the delay in seeking to restore the action to the calendar, a lack of intent to abandon the action, and a lack of prejudice to defendant (Indrunas v Escher Constr. Corp., 277 AD2d 28; Ronsco Constr. Co. v 30 E. 85th St. Co., 219 AD2d 281, 284). The submission of the verified complaint and affidavit, coupled with the expert affidavits of neurologists, established the merits of plaintiff’s claim that she sustained a “serious injury” within the meaning of Insurance Law § 5102 (d) (see, e.g., Licari v Elliott, 57 NY2d 230). Concur — Williams, J. P., Tom, Andrias, Lerner and Saxe, JJ.