Vanessa Parker v Hasem Grocery

Parker v Hasem Grocery 2004 NY Slip Op 09486 [13 AD3d 507] December 20, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Vanessa Parker, Respondent,
v
Hasem Grocery et al., Defendants, and Earl Owens et al., Appellants.

—[*1]In an action to recover damages for personal injuries, the defendants Earl Owens and Marlene Owens appeal from an order of the Supreme Court, Kings County (Ruditzky, J.), dated February 27, 2004, which granted the plaintiff's motion to restore the case to the trial calendar and for leave to file a late note of issue.

Ordered that the order is affirmed, with costs.

An action dismissed pursuant to CPLR 3216 may be restored if the plaintiff can demonstrate both a reasonable excuse for a default and a meritorious cause of action (see Bokhari v Home Depot U.S.A., 4 AD3d 381, 382 [2004]; cf. Fraga v Smithaven Open MRI, 6 AD3d 494 [2004]). Here, the plaintiff demonstrated a justifiable excuse for her failure to timely file the note of issue (see Reyes v Ross, 289 AD2d 554, 555 [2001]; Eden v Leone, 280 AD2d 578 [2001]) and the existence of a meritorious cause of action (see Matter of Simmons v McSimmons, Inc., 261 AD2d 547, 548 [1999]; Hansel v Lamb, 227 AD2d 838 [1996]). In this case, the Supreme Court providently exercised its discretion in granting the motion. Florio, J.P., Schmidt, Adams and Cozier, JJ., concur.