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Penn v. American Airlines, Inc.

Appellate Division of the Supreme Court of New York, First Department
Apr 13, 1993
192 A.D.2d 385 (N.Y. App. Div. 1993)

Opinion

April 13, 1993

Appeal from the Supreme Court, New York County (Walter Schackman, J.).


The IAS Court did not abuse its discretion in vacating the November 30, 1990 conditional order of dismissal, based upon plaintiff's counsel's failure to appear at a November 30, 1990 conference, where, the record reveals that the plaintiff complied with the court's condition, requiring the plaintiff or her counsel to seek vacatur within 30 days of service of a copy of the order with notice of entry, by timely moving to vacate on January 14, 1991, within 35 days after the conditional order was served by mail upon plaintiff's counsel on December 10, 1990 (CPLR 2103 [b][2]; Corradetti v Dales Used Cars, 102 A.D.2d 272), and that the plaintiff demonstrated a justifiable excuse for the delay, by reason of counsel's terminal illness, and a good and meritorious cause of action as against the respective defendants pursuant to CPLR 3216 (e) so as to defeat their motion to dismiss (LeCesse Bros. Contr. v Rochester Gas Elec. Corp., 101 A.D.2d 1021).

Vacatur of the conditional order of dismissal is therefore in conformity with the strong public policy of this State that matters be disposed of on the merits in the absence of real prejudice (Lang v French Co., 48 A.D.2d 641).

We have reviewed the appellants' remaining claims and find them to be without merit.

Concur — Sullivan, J.P., Milonas, Kassal and Rubin, JJ.


Summaries of

Penn v. American Airlines, Inc.

Appellate Division of the Supreme Court of New York, First Department
Apr 13, 1993
192 A.D.2d 385 (N.Y. App. Div. 1993)
Case details for

Penn v. American Airlines, Inc.

Case Details

Full title:MONIQUE PENN, Individually and as Administratrix of the Estate of…

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

Date published: Apr 13, 1993

Citations

192 A.D.2d 385 (N.Y. App. Div. 1993)
596 N.Y.S.2d 357

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