Saunders v. Riverbay Corp.

17 A.D.3d 137, 791 N.Y.S.2d 828, 2005 N.Y. App. Div. LEXIS 3686

Opinion

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered July 14, 2004, which, upon reargument of the court’s prior determination dated October 28, 2003, granted plaintiffs’ motion to restore the action to the court’s pre-note-of-issue calendar, unanimously reversed, on the law, without costs, and the motion denied.

The motion court erred in reversing itself and granting the motion to restore. The complaint was properly dismissed pursuant to 22 NYCRR 202.27 (b) notwithstanding the fact that the dismissing court never issued an order of dismissal or referred to that provision as the basis of its decision (Campos v New York City Health & Hosps. Corp., 307 AD2d 785 [2003]). The case file shows that the matter was dismissed for failure to appear at a pre-note status conference, which indicates that 22 NYCRR 202.27 (b) was invoked. Hence, plaintiffs’ failure to allege sufficiently both a reasonable excuse for their nonappearance and the merits of their case should have precluded relief on reargument as well as on the original motion (Campos, supra). Concur—Tom, J.E, Marlow, Sullivan, Nardelli and Williams, JJ.