BERENGUER v. The Bank of New York Mellon Corporation, etc., et al., Defendants. (2019)

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about June 29, 2018, which denied plaintiff's motion to restore the action to the trial calendar, unanimously reversed, on the law and the facts, without costs, and the motion granted.

The trial court dismissed the action pursuant to 22 NYCRR 202.27 upon plaintiff's failure to proceed to trial.  As an initial matter, plaintiff demonstrated that she did not receive adequate notice of the advanced trial date.  Thus, her failure to proceed with the trial on that date did not constitute a default (see Pelaez v. Westchester Med. Ctr., 15 A.D.3d 375, 376, 789 N.Y.S.2d 533 [2d Dept. 2005]).

In any event, in light of the strong public policy of this State to dispose of cases on their merits, the court improvidently exercised its discretion in denying plaintiff's motion to restore the action to the trial calendar (see Chelli v. Kelly Group, P.C., 63 A.D.3d 632, 633, 883 N.Y.S.2d 26 [1st Dept. 2009]).  Plaintiff demonstrated that her expert witness was unavailable to testify on the advanced trial date due to a religious holiday and that she herself had made plans to travel from out of state for the scheduled trial date (Vera v. Soohoo, 99 A.D.3d 990, 953 N.Y.S.2d 615 [2d Dept. 2012]).  As plaintiff was seeking merely a 24–hour adjournment of the commencement of the trial, defendants would not have been prejudiced.  Moreover, defendants do not dispute that plaintiff demonstrated a meritorious cause of action by submitting an affidavit of merit and her verified complaint.