Goldstein v. Meadows Redevelopment Co Owners Corp.

• Citation: 846 N.Y.S.2d 384,46 A.D.3d 509,2007 NY Slip Op 09555
• Decision Date: 04 December 2007
• Docket Number: 2007-01146.,2007-05412.
• Parties: BETTY GOLDSTEIN, Appellant, v. MEADOWS REDEVELOPMENT CO OWNERS CORP. I et al., Respondents.
• Court: New York Supreme Court Appellate Division

46 A.D.3d 509

846 N.Y.S.2d 384

2007 NY Slip Op 09555

BETTY GOLDSTEIN, Appellant, v. MEADOWS REDEVELOPMENT CO OWNERS CORP. I et al., Respondents.

2007-01146.

2007-05412.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 4, 2007.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Lally, J.), entered December 19, 2006, which denied her motion to vacate the dismissal of the action based on her failure to timely file a note of issue, to restore the action to the trial calendar, and to extend her time to file a note of issue, and (2) an order of the same court entered April 24, 2007, which denied her motion for leave to renew and reargue.

Ordered that the appeal from so much of the order entered April 24, 2007, as denied that branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order entered April 24, 2007 is reversed insofar as reviewed, on the law and in the exercise of discretion, without costs or disbursements, that branch of the motion which was for leave to renew is granted and, upon renewal, the plaintiff's motion to vacate the dismissal of the action, to restore the action to the trial calendar, and to extend the time to file a note of issue is granted, the plaintiff's time to file a note of issue is extended until 60 days after service upon her of a copy of this decision and order, and the order entered December 19, 2006 is modified accordingly; and it is further,

Ordered that the appeal from the order entered December 19, 2006 is dismissed as academic in light of our determination of the appeal from the order entered April 24, 2007.

In this personal injury action the plaintiff failed to timely file the note of issue pursuant to a pretrial conference order. The case was marked "dismissed" in the court's files. Upon learning of the dismissal, the plaintiff's attorney moved to vacate the default in complying with the pretrial order, to restore the action to the trial calendar, and to extend the time for filing the note of issue. In support of the motion, the plaintiff's trial counsel submitted an affidavit which asserted that the default was due to "law office failure," in part occasioned by the illness and personal problems of the plaintiff's prior attorney. Also submitted by the plaintiff was an affidavit from the prior attorney alluding to his circumstances in a cursory manner. The Supreme Court denied the motion.

The plaintiff moved for leave to renew and reargue. In support of that motion the plaintiff provided greater specificity both as to the merits of the claim as well as the circumstances impairing the ability of the initial attorney to comply with the pretrial order in...