Guarneri v. St. John, 795 N.Y.S.2d 462

Guarneri v. St. John

795 N.Y.S.2d 462

N.Y. App. Div.

2005

Check Treatment

Gregory Guarneri et al., Respondents, v Gary T. St. John, Appellant.

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

May 31, 2005

18 A.D.3d 813, 795 N.Y.S.2d 462

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated June 22, 2004, which granted the plaintiffs’ motion pursuant to CPLR 5015 (a) (1) to vacate an order of the same court dated October 27, 2003, striking their complaint upon their default in appearing at certain preliminary conferences, and denied his cross motion pursuant to CPLR 3215 (c) to dismiss the complaint.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court providently exercised its discretion in accepting law office failure as a reasonable excuse for the plaintiffs’ default (see CPLR 2005; Parker v City of New York, 272 AD2d 310 [2000]; Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). Further, the court properly considered affidavits submitted by the plaintiffs in reply papers because the defendant submitted a response thereto (see Matter of Hayden v County of Nassau, 16 AD3d 415 [2005]; Teplitskaya v 3096 Owners Corp., 289 AD2d 477 [2001]).

The defendant‘s remaining contentions are without merit.

Adams, J.P., Ritter, Mastro and Rivera, JJ., concur.