Monter v Wilson

Monter v Wilson 2008 NY Slip Op 08549 [56 AD3d 306] November 13, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

Michael Monter et al., Respondents,
v
Sandra Wilson et al., Appellants, et al., Defendants.

—[*1] Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for appellants.

Peter J. Koulikourdis, Bronx, for respondents.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 31, 2007, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion to reinstate their previously dismissed complaint as to defendants Sandra Wilson and New York City Transit Authority, unanimously affirmed, without costs.

The court properly exercised its discretion under CPLR 5015 (a) (1) in granting reinstatement. Plaintiffs presented a reasonable excuse (see e.g. Navarro v A. Trenkman Estate, Inc., 279 AD2d 257, 258 [2001]) for missing a calendar call, at which they had been required to appear unless they filed a note of issue. Plaintiffs' counsel averred that prior to the scheduled conference he had made a good faith attempt to file a note of issue with the court, and that he resent the note of issue to the court on the day of the calendar call. Plaintiffs' counsel then erroneously assumed that a note of issue had in fact been filed and that the case was still active, a belief that was shared by defense counsel. Plaintiffs also made a sufficient showing of merit. We do not read the motion court's choice of language in its brief decision and order as indicating that it only considered the issue of prejudice. Concur—Tom, J.P., Mazzarelli, Saxe, Nardelli and Buckley, JJ.