Monter v. Wilson

Appellate Division of the Supreme Court of New York

Monter v. Wilson

56 A.D.2d 306, 867 N.Y.S.2d 89

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 13, 2008

StatusPublished

This text of 56 A.D.2d 306 (Monter v. Wilson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Monter v. Wilson, 56 A.D.2d 306, 867 N.Y.S.2d 89 (N.Y. Ct. App. 2008).

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Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 31, 2007, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion to reinstate their previously dismissed complaint as to defendants Sandra Wilson and New York City Transit Authority, unanimously affirmed, without costs.

The court properly exercised its discretion under CPLR 5015 (a) (1) in granting reinstatement. Plaintiffs presented a reasonable excuse (see e.g. Navarro v A. Trenkman Estate, Inc., 279 AD2d 257, 258 [2001]) for missing a calendar call, at which they had been required to appear unless they filed a note of issue. Plaintiffs’ counsel averred that prior to the scheduled conference he had made a good faith attempt to file a note of issue with the court, and that he resent the note of issue to the court on the day of the calendar call. Plaintiffs’ counsel then erroneously assumed that a note of issue had in fact been filed and that the case was still active, a belief that was shared by defense counsel. Plaintiffs also made a sufficient showing of merit. We do not read the motion court’s choice of language in its brief decision and order as indicating that it only considered the issue of prejudice. Concur — Tom, J.E, Mazzarelli, Saxe, Nardelli and Buckley, JJ.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 31, 2007, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion to reinstate their previously dismissed complaint as to defendants Sandra Wilson and New York City Transit Authority, unanimously affirmed, without costs.

The court properly exercised its discretion under CPLR 5015 (a) (1) in granting reinstatement. Plaintiffs presented a reasonable excuse (see e.g. Navarro v A. Trenkman Estate, Inc., 279 AD2d 257, 258 [2001]) for missing a calendar call, at which they had been required to appear unless they filed a note of issue. Plaintiffs’ counsel averred that prior to the scheduled conference he had made a good faith attempt to file a note of issue with the court, and that he resent the note of issue to the court on the day of the calendar call. Plaintiffs’ counsel then erroneously assumed that a note of issue had in fact been filed and that the case was still active, a belief that was shared by defense counsel. Plaintiffs also made a sufficient showing of merit. We do not read the motion court’s choice of language in its brief decision and order as indicating that it only considered the issue of prejudice. Concur — Tom, J.E, Mazzarelli, Saxe, Nardelli and Buckley, JJ.

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Bluebook (online)

56 A.D.2d 306, 867 N.Y.S.2d 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monter-v-wilson-nyappdiv-2008.

Opinion

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