Opinion
No. 411 Index No. 157308/18 Case No. 2022-04241
06-06-2023
Sara's Studios, LLC, Plaintiff-Appellant, v. Sparkle World LLC, et al., Defendants-Respondents.
Law Office of Mark S. Friedlander, New York (Mark S. Friedlander of counsel), for appellant. Harwood Reiff LLC, New York (Simon W. Reiff of counsel), for respondents.
Law Office of Mark S. Friedlander, New York (Mark S. Friedlander of counsel), for appellant.
Harwood Reiff LLC, New York (Simon W. Reiff of counsel), for respondents.
Before: Kapnick, J.P., Oing, Moulton, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Arlene Bluth, J.), entered on or about June 10, 2022, which denied plaintiff's motion to vacate an order, same court and Justice, entered on or about September 10, 2021, sua sponte dismissing the action for plaintiff's failure to comply with court notices directing the submission of discovery stipulations, unanimously reversed, on the law, without costs, plaintiff's motion granted, and the matter restored to the calendar.
The court improvidently exercised its discretion in denying plaintiff's motion to vacate the September 2021 order, as plaintiff demonstrated a reasonable excuse for its noncompliance with the court notices and a meritorious claim (see CPLR 5015[a][1]; Melikov v 66 Overlook Terrace Corp., 211 A.D.3d 537, 538 [1st Dept 2022]; Willner v S Norsel Realties LLC, 206 A.D.3d 545, 545 [1st Dept 2022]). Plaintiff's excuse of law office failure was supported by the affirmation of its attorney explaining that he had to lay off his associate and staff due to the COVID-19 pandemic and, as a result, overlooked the court notices (see Pena v Pinnacle Assoc. II NY LLC, 178 A.D.3d 407 [1st Dept 2019]). A meritorious cause of action for use and occupancy is demonstrated through plaintiff's submission of the amended complaint, the lease agreement, and the affidavit of its principal shareholder (see Willner, 206 A.D.3d at 545-546). Moreover, defendants did not oppose plaintiff's motion to vacate, and have not argued that they would be prejudiced by a vacatur the dismissal order.