Opinion
November 8, 1973
Order, Supreme Court, New York County, entered March 14, 1973, which denied a renewed motion to restore the case to the calendar, unanimously reversed, on the facts and in the exercise of discretion, without costs and without disbursements, the motion granted, and the case restored to the Trial Calendar of Supreme Court, New York County. This action brought by the administrator of the deceased is for recovery of damages resulting in injuries and wrongful death. The case was placed on the calendar by filing a note of issue. It was marked off calendar and subsequently dismissed for failure to file a statement of readiness. Plaintiff moved promptly to vacate the default but failed to include an affidavit of merits in the original motion papers. The motion was denied with leave to renew upon a proper showing. Upon renewal, there was sufficient excuse shown and a valid affidavit of merits. This must be weighed against the lack of demonstration of any prejudice to the defendants. Under all the facts and circumstances, it was an improvident exercise of discretion to deny restoration to the calendar.
Concur — McGivern, J.P., Markewich, Kupferman, Lane and Steuer, JJ.