Betsy Barrios, Plaintiff-Appellant, v. 23 024 025 (2023)

Per Curiam.

Order (Sabrina B. Kraus, J.), dated September 17, 2020, reversed, with $10 costs, motion granted and action restored to the calendar. Appeal from order (Sabrina B. Kraus, J.), dated March 16, 2022, dismissed, without costs, as nonappealable and academic.

Exercising our discretion (see Ruiz v Laophermsook, 211 AD3d 496 [2022]), we vacate plaintiff's default in appearance at trial. The motion court found, and we agree, that plaintiff demonstrated a reasonable excuse for the late appearance on the trial date. Further, plaintiff's successful defense of defendants' prior summary judgment motion demonstrated merit to this action (see Brown v City of New York, 105 AD3d 420 [2013]; Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 293 AD2d 324, 325 [2002]). The nine month delay in seeking vacatur was within the statutory time limit and was not unreasonable in the circumstances, since it included a four month period of state-mandated pandemic lockdowns, and given plaintiff's demonstrated intention to pursue the litigation, as well as the absence of any prejudice (see Tri-State Envtl. Contr., Inc. v M.H. Kane Constr., Inc., 25 AD3d 436 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: June 26, 2023