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Carmen SALAS, Plaintiff, v. ASSEMBLIES OF GOD and Spanish Eastern District of the Assemblies of God, Defendants.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendant's motion for summary judgment and plaintiff's cross motion for partial summary judgment.
Notice of Motion & Affidavits Annexed 1
Affirmation in Opposition 2
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff commenced this action in Supreme Court Kings County, pursuant to a summons and complaint dated April 1, 2015, seeking damages for personal injury sustained by plaintiff on a premises owned or controlled by defendants.
Defendants appeared by counsel on June 2, 2015, and filed an answer asserting seven affirmative defenses, including contributory negligence, and failure to state a cause of action.
Pursuant to an order dated August 10, 2015, defendant's motion to change venue to New York County was granted.
On December 23, 2016, plaintiff filed a notice of readiness for trial. A trial date was set for January 23, 2019. Plaintiff requested three consecutive adjournments and the action was adjourned to March 25, 2019, May 6, 2019, and then June 11, 2019.
On June 11, 2019, plaintiff was again not prepared to proceed and requested the matter be marked off or transferred to Civil Court. The action was transferred to Civil Court on that date.
There were two conference dates in Civil Court on June 26, 2019 and September 16, 2019, and a new trial date was set for October 29, 2019. Plaintiff again requested an adjournment of the trial on that date, through per diem counsel, as plaintiff's counsel was scheduled for surgery. The trial was adjourned to December 4, 2019.
On December 4, 2019, plaintiff's counsel failed to appear on time and the action was dismissed.
THE PENDING MOTION
On February 24, 2020, plaintiff moved to vacate the dismissal and restore the case to the trial calendar. The motion was adjourned to March 9, 2020.
On March 9, 2020, the court heard brief oral argument and reserved decision on the motion. For the reasons stated below, the motion is granted.
It is well settled in New York State courts that there is a preference for disputes to be resolved on their merits (Murray v. Matusiak, 247 AD2d 303, 304).
To vacate her default, plaintiff must show a meritorious claim and a reasonable excuse for counsel's failure to appear (Goodwin v. New York City Hous. Auth., 78 AD3d 550, 550). The determination of what constitutes a reasonable excuse lies within the sound discretion of the court (U.S. Bank, N.A. v. Essaghof, 178 AD3d 876, 877). The court must consider the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness (Dinstber v. Allstate Ins. Co., 75 AD3d 957).
The court finds that plaintiff has established excusable default. Plaintiff's counsel went to the wrong courthouse, and this plus his recent surgery caused him to appear late on the trial date. While plaintiff had requested many prior adjournments, since the filing of the notice of trial, there is no evidence of a pattern of willful default, the delay was not substantial and the prejudice to defendants minimal.
Plaintiff has also shown that there is a meritorious claim upon which to proceed. Defendants argue that the moving papers fail to show facts in admissible form establishing a meritorious claim. The deposition transcript of plaintiff is annexed to the moving papers. The transcript is sufficient to show a meritorious claim on which to proceed (Allstate Ins. Co. v. Hayes, 17 AD3d 669, 671).
Based on the foregoing, plaintiff's motion to vacate the dismissal and restore the action to the trial calendar is granted. The action is restored to the trial calendar Part 21, in Room 949 on June 29, 2020, at 9:30 am and is marked final as against plaintiff.
This constitutes the decision and order of the court.
Sabrina B. Kraus, J.
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