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Ezekiel Kommeh, Plaintiff-Appellant v. the City of New York

New York Supreme and/or Appellate Courts Appellate Division, First Department


June 7, 2012

EZEKIEL KOMMEH, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS.

Kommeh v City of New York

Decided on June 7, 2012

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., 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 AD3d 550 [2010]), based on his prior attorney's neglect of matters entrusted to him and subsequent disbarrment (see Matter of Siskin, 78 AD3d 112 [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 AD3d 429 [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 AD3d 411, 413-414 [2011]), the motion court improvidently exercised its discretion in failing to restore this matter to the trial calendar.

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

ENTERED: JUNE 7, 2012

CLERK

20120607

© 1992-2012 VersusLaw Inc.



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