PARKER v. Earl Owens, et al., appellants. (2004)

In an action to recover damages for personal injuries, the defendants Earl Owens and Marlene Owens appeal from an order of the Supreme Court, Kings County (Ruditzky, J.), dated February 27, 2004, which granted the plaintiff's motion to restore the case to the trial calendar and for leave to file a late note of issue.

ORDERED that the order is affirmed, with costs.

 An action dismissed pursuant to CPLR 3216 may be restored if the plaintiff can demonstrate both a reasonable excuse for a default and a meritorious cause of action (see Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 382, 771 N.Y.S.2d 395;  cf. Fraga v. Smithaven Open MRI, 6 A.D.3d 494, 774 N.Y.S.2d 415).   Here, the plaintiff demonstrated a justifiable excuse for her failure to timely file the note of issue (see Reyes v. Ross, 289 A.D.2d 554, 555, 735 N.Y.S.2d 198;  Eden v. Leone, 280 A.D.2d 578, 720 N.Y.S.2d 799) and the existence of a meritorious cause of action (see Matter of Simmons v. McSimmons, Inc., 261 A.D.2d 547, 548, 690 N.Y.S.2d 643;  Hansel v. Lamb, 227 A.D.2d 838, 642 N.Y.S.2d 407).   In this case, the Supreme Court providently exercised its discretion in granting the motion.