SANTIAGO v. SANTANA (2008)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Colabella, J.), entered October 17, 2007, which granted the plaintiff's motion, in effect, to vacate a judgment of the same court (Barone, J.), dated June 27, 2006, which, upon a prior order of the same court dated April 4, 2006, granting the defendants' motion to dismiss the complaint upon his default in proceeding with trial, dismissed the complaint.

ORDERED that the order entered October 17, 2007, is reversed, on the law, with costs, the judgment and the order dated April 4, 2006, are reinstated, and the motion is denied.

An action dismissed pursuant to 22 NYCRR 202.27(b) may be restored if the plaintiff demonstrates both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015[a][1];  Psomatithis v. Transoceanic Cable Ship Co., Inc., 39 A.D.3d 837, 838, 834 N.Y.S.2d 318;  Watson v. New York City Tr. Auth., 38 A.D.3d 532, 832 N.Y.S.2d 240;  Zeltser v. Sacerdote, 24 A.D.3d 541, 542, 808 N.Y.S.2d 286).   Even if the plaintiff's former attorney was responsible for both the lengthy delay in proceeding with trial and the plaintiff's failure to appear on the last three scheduled trial dates, where there is a pattern of default and neglect, the negligence of the attorney is properly imputed to the client (see Dave Sandel, Inc. v. Specialized Indus. Servs. Corp., 35 A.D.3d 790, 791, 826 N.Y.S.2d 735;  Edwards v. Feliz, 28 A.D.3d 512, 813 N.Y.S.2d 494;  MRI Enters. v. Amanat, 263 A.D.2d 530, 531, 693 N.Y.S.2d 211).   Thus, the plaintiff failed to demonstrate a reasonable excuse for his default.   Furthermore, the plaintiff failed to submit any medical evidence demonstrating that he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Louis v. MTA Long Is. Bus Co., 44 A.D.3d 628, 848 N.Y.S.2d 177;  Rezene v. Williams, 22 A.D.3d 656, 804 N.Y.S.2d 335;  Uddin v. Mirza, 10 A.D.3d 722, 781 N.Y.S.2d 911).   Accordingly, the plaintiff's motion, in effect, to vacate the judgment dismissing the complaint should have been denied.