John A. Cazeau v Marc Paul

Cazeau v Paul 2003 NY Slip Op 19261 [2 AD3d 477] December 8, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

John S. Cazeau, Appellant,
v
Marc Paul et al., Respondents.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Huttner, J.), dated August 29, 2002, which denied his motion to restore the action to the trial calendar.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is restored to the trial calendar.

A case dismissed pursuant to 22 NYCRR 202.27 may be restored only if the plaintiff can demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a] [1]; Lopez v Imperial Delivery Serv., 282 AD2d 190, 197 [2001]). Such a motion must be made within one year after service of the order or judgment entered upon the default (see CPLR 5015 [a] [1]). In this case, the plaintiff made a timely motion to restore the action to the trial calendar. In addition, the plaintiff set forth a meritorious cause of action in his affidavit of merit, and the temporary inability of counsel to contact his client constituted a reasonable excuse for the default. Ritter, J.P., Smith, Friedmann, H. Miller and Crane, JJ., concur.