Carela v Pelham Realty, Inc.

Carela v Pelham Realty, Inc. 2008 NY Slip Op 10046 [57 AD3d 389] December 23, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Yaguiris Carela, an Infant, by Her Mother and Natural Guardian, Maria Rincon, et al., Respondents,
v
Pelham Realty, Inc., Appellant.

—[*1] Barrett Lazar LLC, Forest Hills (Marc B. Schuley of counsel), for appellant.

Stephen H. Fields & Associates, White Plains (Lisa M. Comeau of counsel), for respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about May 22, 2008, which granted plaintiffs' motion to vacate an earlier dismissal and restored the action to the trial calendar, unanimously affirmed, without costs.

This action was dismissed pursuant to 22 NYCRR 202.27 upon plaintiff's failure to attend a pretrial conference. In seeking to vacate the dismissal, plaintiffs came forward with the requisite satisfactory excuse for their default in appearing and a showing of a meritorious claim (see Rugieri v Bannister, 7 NY3d 742 [2006]). Their attorneys did not willfully default when they failed to appear for a scheduled court conference and neglected to move to restore the case to the calendar (see Sanchez v Javind Apt. Corp., 246 AD2d 353 [1998]). In the absence of service of the dismissal order with notice of entry, there was no time limit on the making of the motion to vacate the dismissal, and any alleged prejudice caused by postdismissal delay short of laches is not a consideration (see Acevedo v Navarro, 22 AD3d 391 [2005]). Concur—Tom, J.P., Saxe, Catterson, Moskowitz and DeGrasse, JJ.