Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered February 13, 2008, which, in an action for medical malpractice, denied plaintiff's motion to vacate the court's dismissal of the action due to plaintiff's failure to proceed to trial, unanimously reversed, on the law and the facts, without costs, the motion granted, and the action restored to the trial calendar.
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.
Friedman, J.P., Sweeny, Catterson, Renwick, Freedman, JJ.
The court improvidently exercised its discretion in sua sponte dismissing the action for failure to proceed to trial rather than marking it off the trial calendar. The record shows that defendants had not moved for dismissal of the action, that this was the first time plaintiff had sought an adjournment, which the parties had agreed to due to the unavailability of plaintiff's expert, and that both parties appeared at the calendar call although plaintiff's counsel had to temporarily leave to tend to another matter (see 22 NYCRR 202.27; Danne v Otis El. Corp., 31 AD3d 599 ; Rodriguez v Pisa Caterers, 146 AD2d 686 ). Furthermore, in seeking restoration, plaintiff sufficiently demonstrated both a reasonable excuse and a meritorious cause of action (CPLR 5015[a]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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