Opinion
2012-06-7
Ezekiel KOMMEH, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Law Offices of Charles Nathan, P.C., Bronx (Charles Nathan of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.
Law Offices of Charles Nathan, P.C., Bronx (Charles Nathan of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.
TOM, J.P., ANDRIAS, MOSKOWITZ, ACOSTA, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered May 10, 2011, which denied plaintiff's motion to vacate his default and granted defendant City of New York's cross motion to dismiss the complaint, unanimously reversed, on the law, without costs, plaintiff's motion granted, defendant's motion denied, and the complaint reinstated.
Plaintiff provided a reasonable excuse for failure to appear at the preliminary conference and failure to timely serve a complaint ( see Goodwin v. New York City Housing Authority, 78 A.D.3d 550, 913 N.Y.S.2d 149 [2010] ), based on his prior attorney's neglect of matters entrusted to him and subsequent disbarment ( see Matter of Siskin, 78 A.D.3d 112, 909 N.Y.S.2d 411 [2010] ). Plaintiff's affidavit and accompanying documentation adequately demonstrate the merit of this action for personal injuries suffered by plaintiff when he was walking across the street and was hit by a police car that was traveling in the wrong direction without using lights or sirens ( see Parker v. Alacantara, 79 A.D.3d 429, 913 N.Y.S.2d 40 [2010] ). Under these circumstances and in view of the strong public policy favoring resolution of cases on the merits ( see Chevalier v. 368 E. 148th St. Assoc., LLC, 80 A.D.3d 411, 413–414, 914 N.Y.S.2d 130 [2011] ), the motion court improvidently exercised its discretion in failing to restore this matter to the trial calendar.