BY QUAISHA v. Andrew Prince, Defendant. (2021)

Orders, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about February 6, 2020, which, respectively, dismissed the complaint in its entirety and denied plaintiffs’ order to show cause seeking to vacate an order, same court and Justice, entered on or about September 13, 2019, which granted defendants’ motion to strike the complaint unless plaintiff Quaisha Kelley and a nonparty witness appeared for deposition within 30 days of service of the order with notice of entry, unanimously reversed, on the law and the facts, without costs, and plaintiffs’ order to show cause granted to the extent of vacating the conditional order.  Appeal from the September 2019 order unanimously dismissed, without costs, as subsumed in the appeal from the February 2020 order.

In support of their motion to vacate the September 2019 conditional order of dismissal, which became absolute upon plaintiffs’ failure to produce their witnesses for deposition within the time specified, plaintiffs demonstrated a reasonable excusable for their failure to produce the witnesses (see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010];  Humble Monkey, LLC v. Rice Sec., LLC, 184 A.D.3d 498, 124 N.Y.S.3d 182 [1st Dept. 2020]).  Plaintiff demonstrated bona fide efforts to schedule plaintiff's continued deposition.  After new dates could not be mutually agreed upon, it sought the Court's assistance in scheduling new dates.  There is no basis to conclude that the nonparty would not have been scheduled once the plaintiff's deposition was completed.  Additionally, failure to submit an affidavit of merit in moving to vacate the dismissal is not fatal (see Marks v. Vigo, 303 A.D.2d 306, 307, 756 N.Y.S.2d 568 [1st Dept. 2003] [meritorious claim can be demonstrated by evidence in the record];  Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213, 215, 735 N.Y.S.2d 520 [1st Dept. 2002]).  Here, there is evidence in the record that plaintiff-infant suffered lead poisoning as diagnosed by plaintiff-infant's pediatrician.  Further, plaintiffs submitted proof that the New York City Department of Health Lead Poisoning Prevention Program 10 (DOH) inspected the subject premises and found areas therein which 11 constituted lead hazards.