Summary
holding that a preference exists to dispose of cases on their merits
Summary of this case from Briskin v. ThomasOpinion
5673
February 7, 2002.
Order, Supreme Court, New York County (Walter Tolub J.), entered on or about February 9, 2001, which, insofar as appealed from, denied appellant's motion brought pursuant to CPLR R5015 to vacate an order of the same court and Justice dated November 17, 2000, which, sua sponte, dismissed appellant's counterclaim, with prejudice, pursuant to 22 NYCRR § 202.27, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the motion to vacate granted and the counterclaim reinstated.
JOHN HAGELIN, for plaintiffs-respondents.
RICHARD L. ARONSTEIN, for defendant-appellant.
Before: Saxe, J.P., Lerner, Buckley, Friedman, Marlow, JJ.
In light of our preference to dispose of cases on the merits (see,Santora McKay v. Mazzella, 211 A.D.2d 460, 463), we find that the Supreme Court improvidently exercised its discretion in denying appellant's motion to vacate the prior order dismissing its counterclaim. An order dismissing a claim pursuant to 22 NYCRR § 202.27, based on a party's failure to appear at a calendar call, should be vacated where the party shows a reasonable excuse for the default and a meritorious cause of action (see, Telep v. Republic Elev. Corp., 267 A.D.2d 57).
Appellant's attorney's failure to appear at the adjourned pre-trial conference amounted to, at worst, law office failure, which can constitute a reasonable excuse (see, CPLR § 2005;Telep, supra), especially where, as here, counsel explained he had no entry of the adjourned date in his personal or office diary, he had spoken with opposing counsel several days earlier and no mention was made of the upcoming conference, and, when informed that morning of the conference, he immediately offered to go to court. Moreover, in addition to the excusable nature of the default, appellant submitted an affidavit setting forth a meritorious counterclaim.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.