Werner v. Tiffany & Co.

• Decision Date: 21 February 2002
• Docket Number: 48,1
• Court: New York Supreme Court — Appellate Division
• Parties: Elwood Werner, Plaintiff-Appellant, v Tiffany & Co., Defendant-Respondent. 48 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT Decided on

Elwood Werner, Plaintiff-Appellant v Tiffany & Co., Defendant-Respondent

48

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

Decided on February 21, 2002

Scott A. Korenbaum - for plaintiff-appellant,

Amy L. Ventry - for defendant-respondent.

Williams, J.P., Mazzarelli, Rosenberger, Wallach, Lerner, JJ.

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered November 29, 2000, which, in an action for unlawful discrimination, denied plaintiff's motion to restore the case to the trial calendar, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the complaint reinstated.

On December 8, 1997, after filing a note of issue, this action alleging discrimination based upon perceived sexual orientation was marked off the trial calendar, upon the parties' agreement that further disclosure was warranted. In April 1998, defendant took plaintiff's deposition, and plaintiff sent defendant a letter seeking to adjourn the deposition of other witnesses. On December 15, 1998, the action was dismissed pursuant to CPLR 3404 by operation of law. Plaintiff's counsel was not aware of the dismissal until April 13, 2000. On April 17, 2000, plaintiff moved to restore the action. The court denied the application. We reverse.

Plaintiff has presented sufficient evidence to rebut the presumption of abandonment pursuant to CPLR 3404 by demonstrating, as required: (1) that the underlying action has merit; (2) a reasonable excuse for the delay in making the restoration motion; (3) the absence of an intent to abandon the action; and (4) a lack of prejudice to the defense (Ware v Porter, 227 A.D.2d 214, 214-215).

First, as to the merits, plaintiff's complaint, as amplified by his affidavit annexed to its motion papers, provided a detailed narrative sufficient to support a claim that the defendant had violated New York City Administrative Code 8-107(1)(a), which prohibits unlawful discriminatory practices based upon perceived sexual orientation (Peterson v City of New York, 286 A.D.2d 287; Indrunas v Escher Constr. Co., 277 A.D.2d 28).

Second, law office failure caused the delay in moving to restore the case. Counsel misplaced his calendar, and in the process of trying to reconstruct his commitments, he forgot to include the deadline for restoration of this case. Counsel's mistake should not inure to the detriment of his innocent client (Enax v New York Tel Co., 280 A.D.2d 294, 296; Salzano v Mastrantonio, 267 A.D.2d...