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Parker v. Grocery

Appellate Division of the Supreme Court of New York, Second Department
Dec 20, 2004
13 A.D.3d 507 (N.Y. App. Div. 2004)

Opinion

2004-03534.

December 20, 2004.

In an action to recover damages for personal injuries, the defendants Earl Owens and Marlene Owens appeal from an order of the Supreme Court, Kings County (Ruditzky, J.), dated February 27, 2004, which granted the plaintiff's motion to restore the case to the trial calendar and for leave to file a late note of issue.

Before: Florio, J.P., Schmidt, Adams and Cozier, JJ., concur.


Ordered that the order is affirmed, with costs.

An action dismissed pursuant to CPLR 3216 may be restored if the plaintiff can demonstrate both a reasonable excuse for a default and a meritorious cause of action ( see Bokhari v. Home Depot U.S.A., 4 AD3d 381, 382; cf. Fraga v. Smithaven Open MRI, 6 AD3d 494). Here, the plaintiff demonstrated a justifiable excuse for her failure to timely file the note of issue ( see Reyes v. Ross, 289 AD2d 554, 555; Eden v. Leone, 280 AD2d 578) and the existence of a meritorious cause of action ( see Matter of Simmons v. McSimmons, Inc., 261 AD2d 547, 548; Hansel v. Lamb, 227 AD2d 838). In this case, the Supreme Court providently exercised its discretion in granting the motion.


Summaries of

Parker v. Grocery

Appellate Division of the Supreme Court of New York, Second Department
Dec 20, 2004
13 A.D.3d 507 (N.Y. App. Div. 2004)
Case details for

Parker v. Grocery

Case Details

Full title:VANESSA PARKER, Respondent, v. HASEM GROCERY et al., Defendants, and EARL…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 20, 2004

Citations

13 A.D.3d 507 (N.Y. App. Div. 2004)
787 N.Y.S.2d 363

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