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Walter Allen, -And v. Annette Allen

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 3, 2010

WALTER ALLEN, -AND-
v.
ANNETTE ALLEN, PLAINTIFF-APPELLANT,
LAWRENCE J. MAINIERO,
DEFENDANT-RESPONDENT.

Per curiam.

Allen v Allen

Appellate Term, First Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2010

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ

Plaintiff Annette Allen appeals from an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), dated June 23, 2009, which denied her motion to vacate her default in appearing for a court conference.

Order (Nelida Malave-Gonzalez, J.), dated June 23, 2009, reversed, without costs, motion granted, complaint reinstated and matter remanded for further proceedings.

In light of the particular facts of this action to recover damages for personal injuries plaintiff allegedly sustained in an automobile accident, Civil Court should have granted plaintiff's motion to vacate her default. Plaintiff, appearing pro se in the action at the time she failed to appear for a court conference, demonstrated a reasonable excuse for that default and a potentially meritorious claim. Notably, with respect to the merits of plaintiff's claim, Civil Court previously denied defendant's motion for summary judgment dismissing the complaint, finding triable issues of fact to exist regarding defendant's negligence and whether plaintiff sustained a "serious injury" within the meaning of Insurance Law § 5102(d).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 03, 2010

20101203

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