Parker v. Alacantara

Appellate Division of the Supreme Court of New York

Parker v. Alacantara

79 A.D.3d 429, 913 N.Y.S.2d 40

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

DecidedDecember 2, 2010

StatusPublished

Cited by2 cases

This text of 79 A.D.3d 429 (Parker v. Alacantara) 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

Parker v. Alacantara, 79 A.D.3d 429, 913 N.Y.S.2d 40 (N.Y. Ct. App. 2010).

Pincite

Opinion

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about April 5, 2010, which, inter alia, in this action for serious injuries allegedly sustained in an automobile accident, granted plaintiff’s motion to vacate his default and restored the matter to the trial calendar, unanimously affirmed, with costs.

A plaintiff moving to vacate a judgment under CPLR 5015 (a) must demonstrate both a reasonable excuse for the default and a meritorious cause of action (see e.g. Rugieri v Bannister, 7 NY3d 742, 744 [2006]). Here, the motion court exercised its discretion in a provident manner in granting plaintiffs motion and restoring the action to the trial calendar. The record shows that when the parties appeared in court for the purpose of selecting a jury, it was defendants who originally requested an adjournment and that plaintiffs attorney was present in court. The action was dismissed after plaintiff’s counsel left to [430]*430ascertain the status of settlement negotiations and failed to return for approximately one hour. There is no indication of any willful conduct on the part of counsel or that he had engaged in a pattern of seeking repeated adjournments or noncompliance with court orders. Accordingly, in view of the strong public policy favoring resolution of cases on their merits (see e.g. Arrington v Bronx Jean Co., Inc., 76 AD3d 461, 462 [2010]), the court appropriately accepted the explanation offered by plaintiff for his counsel’s temporary unavailability.

Plaintiff also established a meritorious cause of action by producing competent evidence including the police accident report, his deposition testimony and numerous medical records demonstrating that the vehicle which he had been driving was struck by defendants’ automobile, thereby causing him to suffer serious injuries.

We have considered defendants’ remaining contentions and find them unavailing. Concur — Sweeny, J.P., Catterson, Moskowitz, Renwick and Richter, JJ.

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Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about April 5, 2010, which, inter alia, in this action for serious injuries allegedly sustained in an automobile accident, granted plaintiff’s motion to vacate his default and restored the matter to the trial calendar, unanimously affirmed, with costs.

A plaintiff moving to vacate a judgment under CPLR 5015 (a) must demonstrate both a reasonable excuse for the default and a meritorious cause of action (see e.g. Rugieri v Bannister, 7 NY3d 742, 744 [2006]). Here, the motion court exercised its discretion in a provident manner in granting plaintiffs motion and restoring the action to the trial calendar. The record shows that when the parties appeared in court for the purpose of selecting a jury, it was defendants who originally requested an adjournment and that plaintiffs attorney was present in court. The action was dismissed after plaintiff’s counsel left to [430]*430ascertain the status of settlement negotiations and failed to return for approximately one hour. There is no indication of any willful conduct on the part of counsel or that he had engaged in a pattern of seeking repeated adjournments or noncompliance with court orders. Accordingly, in view of the strong public policy favoring resolution of cases on their merits (see e.g. Arrington v Bronx Jean Co., Inc., 76 AD3d 461, 462 [2010]), the court appropriately accepted the explanation offered by plaintiff for his counsel’s temporary unavailability.

Plaintiff also established a meritorious cause of action by producing competent evidence including the police accident report, his deposition testimony and numerous medical records demonstrating that the vehicle which he had been driving was struck by defendants’ automobile, thereby causing him to suffer serious injuries.

We have considered defendants’ remaining contentions and find them unavailing. Concur — Sweeny, J.P., Catterson, Moskowitz, Renwick and Richter, JJ.

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Bluebook (online)

79 A.D.3d 429, 913 N.Y.S.2d 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-alacantara-nyappdiv-2010.

Opinion

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