Opinion
570504/04.
Decided September 9, 2005.
Defendants, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, Bronx County, dated July 14, 2004 (Larry S. Schachner, J.) as failed to unconditionally grant their motion for summary judgment dismissing the complaint.
Order dated July 14, 2004 (Larry S. Schachner, J.) affirmed, with $10 costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
In a so-ordered stipulation executed through counsel in March 2004, the parties agreed that the injured plaintiff would appear for examination within 60 days, or else suffer preclusion of medical evidence. Plaintiff's counsel then allegedly had difficulty in locating her client, and the date was missed. The court granted defendants' motion for summary judgment only if the injured plaintiff failed to appear for his examination on a new date certain, namely, August 31, 2004.
Plaintiffs demonstrated a reasonable excuse for their default in timely complying with the so-ordered discovery directives, as well as a meritorious cause of action ( Seven Acre Wood St. Assoc. v. Petruccelli Eng'g, 3 AD3d 396). Their default was not willful. Counsel offered a sufficient excuse that she had executed the stipulation without knowing the exact whereabouts of her clients ( see Goldsmith Motors Corp. v. Chemical Bank, 300 AD2d 440). Plaintiffs, who learned of the missed examination date when calling to check the status of the case, "should not be deprived of [their] day in court by [their] attorney's neglect or inadvertent error, especially where the other party cannot show prejudice" ( Paoli v. Sullcraft Mfg. Co., 104 AD2d 333, 334). Moreover, the injured plaintiff adequately demonstrated merit to his negligence claim, alleging that the rear-ending of his vehicle by defendants' automobile resulted in back injury, the seriousness of which is not now challenged by defendants. Affording this plaintiff a final opportunity to appear for medical examination was a proper exercise of discretion (CPLR 2005).
This constitutes the decision and order of the court.