Opinion
10477-10477A-10477B Index 162616/14
12-03-2019
Ivan PENA, Plaintiff–Appellant, v. PINNACLE ASSOCIATES II N.Y. LLC, Defendant–Respondent, R & L Construction, Inc., et al., Defendants. [And a Third–Party Action]
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Christopher J. Soverow of counsel), for appellant. Mischel & Horn, New York (Christen Giannaros of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Christopher J. Soverow of counsel), for appellant.
Mischel & Horn, New York (Christen Giannaros of counsel), for respondent.
Acosta, P.J., Renwick, Mazzarelli, Kapnick, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered December 21, 2018, which denied plaintiff's motion to vacate an order of dismissal entered May 14, 2018, restore the case to active status on the trial calendar, and set down a new trial date, unanimously reversed, on the facts, without costs, and the motion granted. Order, same court and Justice, entered May 14, 2018, which denied plaintiff's motion for summary judgment as academic, unanimously reversed, on the law, without costs, and the matter remanded to Supreme Court for consideration of the motion. Appeal from aforesaid order of dismissal, unanimously dismissed, without costs, as subsumed in the appeal from the December 21, 2018 order.
Plaintiff demonstrated both a reasonable excuse for his default and a meritorious claim (see Gibbs v. St. Barnabas Hosp. , 16 N.Y.3d 74, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] ). He submitted an affirmation by his counsel and an affidavit by counsel's calendar clerk that established law office failure and an affidavit of merit sufficient to raise an issue of fact as to the merit of his claim (see Nieves v. Citizens Advice Bur. Jackson Ave. Family Residence, 140 A.D.3d 566, 32 N.Y.S.3d 507 [1st Dept. 2016] ).