Goodwin v New York City Hous. Auth., 2010 NY Slip Op 08614 (1st Dept. 2010)
“Order…denied plaintiffs’ motion to vacate a prior order that had dismissed the action pursuant to 22 NYCRR 202.27(b) for their attorney’s failure to appear at a preliminary conference, unanimously reversed, on the law, without costs, the motion granted, and the complaint reinstated.”
“Law office failure may constitute a reasonable excuse for a default (see Dokmecian v ABN AMRO N. Am., 304 AD2d 445 [2003] [counsel inadvertently scheduled the wrong date for the preliminary conference]). Here, under the circumstances (including counsel’s stressful preoccupation with the health of a close family member), a one-time default at a preliminary [*2]conference that plaintiffs had requested after remand from this Court should not result in dismissal of the action (CPLR 2005; see Mediavilla v Gurman, 272 AD2d 146, 148 [2000]), especially in light of the strong public policy in this State for disposing of cases on their merits (see Hyde Park Motor Co., Inc. v Sucato, 24 AD3d 724 [2005]).
This court is all too familiar with this case, having reversed Supreme Court’s wrongful dismissal of the complaint once before for labeling a correction to the original notice of claim as a “second” notice (42 AD3d at 66). The lawsuit stemming from this eight-year-old accident has now survived two mistaken dismissals. No discovery has taken place. It is time for discovery to commence and finish expeditiously so that plaintiffs’ claims may be addressed on their merits.
The First Department seems to understand the Legislative intent behind CPLR 2005.
