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Carela v. Pelham Realty

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 23, 2008

YAGUIRIS CARELA, AN INFANT OVER THE AGE OF 14 BY HER MOTHER AND NATURAL GUARDIAN, MARIA RINCON, ET AL., PLAINTIFFS-RESPONDENTS,
v.
PELHAM REALTY, INC., DEFENDANT-APPELLANT.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about May 22, 2008, which granted plaintiffs' motion to vacate an earlier dismissal and restored the action to the trial calendar, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Catterson, Moskowitz, DeGrasse, JJ.

8090/00

This action was dismissed pursuant to 22 NYCRR 202.27 upon plaintiff's failure to attend a pre-trial conference. In seeking to vacate the dismissal, plaintiffs came forward with the requisite satisfactory excuse for their default in appearing and a showing of a meritorious claim (see Rugieri v Bannister, 7 NY3d 742 [2006]). Their attorneys did not willfully default when they failed appear for a scheduled court conference and neglected to move to restore the case to the calendar (see Sanchez v Javind Apt. Corp., 246 AD2d 353 [1998]). In the absence of service of the dismissal order with notice of entry, there was no time limit on the making of the motion to vacate the dismissal, and any alleged prejudice caused by post-dismissal delay short of laches is not a consideration (see Acevedo v Navarro, 22 AD3d 391 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081223

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