Ivalisse Bustamante, etc., et al., Plaintiffs-Appellants, v. Green Door Realty Corp., et al., Defendants-Respondents. (2010)

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Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 7, 2008, which, in an action for personal injuries sustained on defendants' premises, denied plaintiffs' motion to vacate an order, same court and Justice, entered on or about January 22, 2008, which had granted, upon default, defendants' motion to dismiss the complaint, unanimously affirmed, without costs.   Order, same court and Justice, entered April 15, 2009, which denied plaintiffs' motion to renew their motion to vacate the January 22, 2008 order, unanimously reversed, on the facts, without costs, renewal granted, and, upon renewal, plaintiffs' motion to vacate the January 22, 2008 order granted, defendants' motion to dismiss the complaint denied, and the complaint reinstated.

With respect to the order of January 22, 2008, even if the branch of defendants' motion to dismiss the complaint based on CPLR 3126 should have been denied, although unopposed, for lack of an affirmation of good faith as required by 22 NYCRR 202.7, the lack of opposition nevertheless warranted the granting of the branch of the motion based on the court-issued CPLR 3216 notice.   Plaintiffs' motion to vacate that default on the ground that, inter alia, a court clerk had extended the CPLR 3216 notice was properly denied for lack of an affidavit of merit (see Pennsylvania Bldg. Co. v. Schaub, 14 AD3d 365 [2005] ), a defect that was not remedied by plaintiffs' submission of an affidavit of merit in their reply (see Migdol v. City of New York, 291 A.D.2d 201 [2002] ).   Although, on renewal, plaintiffs failed to adequately explain this lapse in practice, they did show that the action is meritorious;  that there were compelling reasons, having to do with their attorney's health and the health of his immediate family members, for their delay in providing the medical authorizations that defendants sought and for their failure to oppose the motion to dismiss;  and that they had provided the authorizations sought to the extent possible.   Furthermore, it does not appear that defendants have been prejudiced by the delays in obtaining the authorizations attributable to plaintiffs.   Accordingly, in the interest of justice and substantive fairness (see Tishman Constr.   Corp. of N.Y. v City of New York, 280 A.D.2d 374, 376-377 [2001] ), we grant renewal, excuse plaintiffs' failure to oppose defendants' motion to dismiss, and reinstate the complaint (see 219 E. 7th St. Hous. Dev. Fund Corp. v 324 E. 8th St. Hous. Dev. Fund Corp., 40 AD3d 293 [2007];  Stephenson v Hotel Empls.   & Rest. Empls.   Union Local 100 of AFL-CIO, 293 A.D.2d 324 [2002] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK