Wiebusch v. Bethany Memorial Reform Church

51 A.D.3d 577, 859 N.Y.S.2d 63

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered December 4, 2007, which, upon plaintiffs motion to vacate the note of issue and certificate of readiness in this action for personal injuries, adjourned the trial date 10 weeks, directed the parties to conduct limited additional discovery, and denied the cross motion of defendant Marble Collegiate Church (Marble) to dismiss the complaint for failure to prosecute, unanimously affirmed, without costs.

The illness of plaintiffs prior attorney, which developed following the filing of the note of issue and certificate of readiness and resulted in plaintiff being unable to obtain the return of her complete case file, constitutes unusual or unanticipated circumstances warranting the relief provided (see 22 NYCRR 202.21 [d]). Contrary to Marble’s contention, plaintiff was not required to demonstrate the merits of her case in furtherance of the motion (id.), and the record shows that Marble is not prejudiced by the court’s determination (see Acevedo v New York City Tr. Auth., 294 AD2d 310 [2002]; Urena v Bruprat Realty Corp., 179 AD2d 505 [1992]). Concur—Andrias, J.E, Saxe, Sweeny, Moskowitz and DeGrasse, JJ.