Opinion
17496-, 17497-, 17498 Index No. 153384/18 Case Nos. 2022-01415, 2022-01417, 2022-01419
03-16-2023
Dr. Spring COOPER, Plaintiff–Appellant, v. Ryan BROEMS, Defendant–Respondent, Calidaddy26 et al., Defendants.
Daniel Szalkiewicz & Associates, P.C., New York (Daniel S. Szalkiewicz of counsel), for appellant.
Daniel Szalkiewicz & Associates, P.C., New York (Daniel S. Szalkiewicz of counsel), for appellant.
Webber, J.P., Oing, Scarpulla, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered March 8, 2022, which denied plaintiff's motion to vacate and restore the action, unanimously reversed, on the law, without costs, the motion granted, and the complaint reinstated. Appeals from orders, same court and Justice, entered February 4, 2022 and March 22, 2022, unanimously dismissed, without costs, as taken from nonappealable papers.
Supreme Court improvidently exercised its discretion in denying the unopposed motion to vacate dismissal order, as plaintiff gave both a reasonable excuse for her default and a potentially meritorious claim ( Pena v. Pinnacle Assoc. II N.Y. LLC, 178 A.D.3d 407, 407, 111 N.Y.S.3d 175 [1st Dept. 2019] ). Plaintiff presented a substantiated excuse of law office failure in the form of an affirmation from counsel, along with a copy of counsel's office electronic calendar showing that his office had inadvertently failed to calendar the due date on which they were to update the court on the progress of discovery (see Melikov v. 66 Overlook Terrace Corp., 211 A.D.3d 537, 538, 181 N.Y.S.3d 35 [1st Dept. 2022] ; Willner v. S Norsel Realties LLC, 206 A.D.3d 545, 545–546, 168 N.Y.S.3d 816 [1st Dept. 2022] ; see Pena, 178 A.D.3d at 407, 111 N.Y.S.3d 175 ). Plaintiff also showed that she was actively prosecuting the claims.
In addition, plaintiff submitted evidence supporting a potentially meritorious claim by submitting the plea minutes from the attendant criminal case where defendant admitted to the actions complained of (see Winters v. Atlantic Dev. Corp., 205 A.D.3d 447, 447, 165 N.Y.S.3d 693 [1st Dept. 2022] ). Under these circumstances, dismissal of the action unfairly penalized only plaintiff (see Melikov, 211 A.D.3d at 538, 181 N.Y.S.3d 35 ; Genesis R. v. City of New York, 162 A.D.3d 471, 472, 75 N.Y.S.3d 33 [1st Dept. 2018] ). Vacating the dismissal order is consistent with the public policy of this State to dispose of cases on their merits ( Harwood v. Chaliha, 291 A.D.2d 234, 234, 737 N.Y.S.2d 359 [1st Dept. 2002] ), and upholds the principle that a trial court's power to dismiss an action sua sponte should be used "sparingly and only in extraordinary circumstances" ( Grant v. Rattoballi, 57 A.D.3d 272, 273, 869 N.Y.S.2d 53 [1st Dept. 2008] ; see Mateo v. City of New York, 274 A.D.2d 337, 337, 711 N.Y.S.2d 396 [1st Dept. 2000] ).