Opinion
No. 2023-50633
06-26-2023
Betsy Barrios, Plaintiff-Appellant, v. Arouse Taxi, Inc. and Shafiqual Mollah, Defendants-Respondents,
Unpublished Opinion
PRESENT: Brigantti, J.P., Michael, James, JJ.
PER CURIAM.
Plaintiff appeals from 1) an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), dated September 17, 2020, which denied her motion to vacate a default and to restore the case to the trial calendar, and 2) an order (same court and Judge), dated March 16, 2022, which denied her motion to renew and reargue the prior order.
Order (Sabrina B. Kraus, J.), dated September 17, 2020, reversed, with $10 costs, motion granted and action restored to the calendar. Appeal from order (Sabrina B. Kraus, J.), dated March 16, 2022, dismissed, without costs, as nonappealable and academic.
Exercising our discretion (see Ruiz v Laophermsook, 211 A.D.3d 496 [2022]), we vacate plaintiff's default in appearance at trial. The motion court found, and we agree, that plaintiff demonstrated a reasonable excuse for the late appearance on the trial date. Further, plaintiff's successful defense of defendants' prior summary judgment motion demonstrated merit to this action (see Brown v City of New York, 105 A.D.3d 420 [2013]; Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 293 A.D.2d 324, 325 [2002]). The nine month delay in seeking vacatur was within the statutory time limit and was not unreasonable in the circumstances, since it included a four month period of state-mandated pandemic lockdowns, and given plaintiff's demonstrated intention to pursue the litigation, as well as the absence of any prejudice (see Tri-State Envtl. Contr., Inc. v M.H. Kane Constr., Inc., 25 A.D.3d 436 [2006]).