Author: DMG

CPLR R. 5015; “Interest of justice” and a Footnote (FN 1)

CPLR R. 5015 Relief from judgment or order

Kostun v Gower, 2009 NY Slip Op 03430 (App. Div., 3rd, 2009)

Plaintiff was the victim of a brutal attack in August 2002 which
rendered him a quadriplegic. He commenced this action in 2003 against
the two individuals who personally caused his injuries, as well as
several other individuals who were present and allegedly conspired in
the assault. One such defendant, defendant Jennifer M. Cimaomo
(hereinafter defendant), failed to timely answer and, in 2007,
plaintiff moved for a default judgment as to liability against her.
Over defendant's opposition, Supreme Court found defendant in default.
Defendant now appeals.[FN1]
[*2]

In considering an application
for a default judgment, a court must ascertain whether "the defendant
demonstrated a reasonable excuse for the default and a meritorious
defense" (Drucker v Ward, 293 AD2d 891, 891-892 [2002]). In
addition, courts have the inherent power to forgive even an unexplained
default "in the interest of justice" (B.U.D. Sheetmetal v Massachusetts Bay Ins. Co., 248 AD2d 856, 856 [1998]; see Wade v Village of Whitehall, 46 AD3d 1302,
1303 [2007]). Here, defendant admits accompanying a group of
individuals to confront plaintiff, but alleges that she did not take
any part in the planning or execution of the assault. After reviewing
the record, we find that defendant has met her burden of demonstrating
viable questions of fact as to whether she conspired or otherwise
participated in the assault. Hence, she demonstrated a potentially
meritorious defense (see Cippitelli v Town of Niskayuna, 277 AD2d 540, 542 [2000]; Cerrone v Fasulo, 245 AD2d 793, 794 [1997]; see also Poree v Bynum, 56 AD3d 261, 262 [2008]).

Turning to the issue of excuse, it is conceded that defendant's
answer was untimely; although she was obligated to answer within 20
days of personal service, which occurred on September 15, 2003 (see
CPLR 320 [a]), she did not serve her answer until October 27, 2003.
However on October 8, 2003, at which point defendant's answer was late
by three days, she was again served with the same summons and complaint
by mail. Acting pro se, rather than seek an extension of her time to
answer, defendant simply answered as if her time to answer began to run
anew from the second service. We find this situation akin to those
where we have held that "defendant['s] default may be permissibly
attributed to excusable 'law office failure'" (Cerrone v Fasulo,
245 AD2d at 794 [1997]). Further, although defendant failed to take any
immediate action after plaintiff returned her answer as untimely, when
notified of the impending default she promptly obtained counsel who
appeared pro bono to oppose entry of the default judgment.

On this record, moreover, it appears that defendant's default
was not willful and that plaintiff was not prejudiced by her delay in
answering (see Drucker v Ward, 293 AD2d at 892)[FN2]. Indeed, "it is readily apparent that defendant[] did not intend to abandon [her] defense in this action" (Rickert v Chestara, 56 AD3d 941,
942 [2008]). "Thus, given the questions of fact as to merit, the brief
delay, the lack of intention on defendant['s] part to default, the
failure of plaintiff to demonstrate any prejudice attributable to the
delay and the policy preference in favor of resolving disputes on the
merits, we conclude that defendant['s] untimeliness should have been
excused in this instance" (Cerrone v Fasulo, 245 AD2d at 794 [citation omitted]; see Rickert v Chestara, 56 AD3d at 942; Wade v Village of Whitehall, 46 AD3d at 1303; Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]).

Footnote 1: While no appeal generally lies from an order entered upon default (see
CPLR 5511), that prohibition does not apply where, as here, the
defaulting party appears and contests the application for a default
judgment (see ABS 1200, LLC v Kudriashova, 60 AD3d 1164, ___, 874 NYS2d 336, 338 n 3 [2009]; Robert Marini Bldr. v Rao, 263 AD2d 846, 848 [1999]).

Footnote 2:Notably, plaintiff's motion for a default judgment against defendant was not made until August 16, 2007, more than
3½ years after rejecting defendant's answer.

The bold is mine

CPLR § 3213; CPLR § 1001

CPLR § 3213 Motion for summary judgment in lieu of complaint

CPLR § 1001 Necessary joinder of parties

Ro & Ke, Inc. v Stevens, 2009 NY Slip Op 03501 (App. Div., 2nd, 2009)

"[A] document comes within CPLR 3213 if a prima facie case would be
made out by the instrument and a failure to make the payments called
for by its terms . . . . The instrument does not qualify if outside
proof is needed, other than simple proof of nonpayment or a similar de
minimis deviation from the face of the document" (Weissman v Sinorm Deli, 88 NY2d 437, 444 [internal quotation marks [*2]omitted]; see Stallone v Rostek,
27 AD3d 449, 450). Here, the plaintiff made a prima facie showing of
entitlement to judgment as a matter of law by proving the existence of
the subject note and nonpayment according to its terms (see Black Rock, Inc. v Z Best Car Wash, Inc., 27 AD3d 409, 409; James DeLuca, M.D., P.C. v North Shore Med. Imaging, 287 AD2d 488, 488; A. Bella Food Corp. v Luigi's Italian Deli,
243 AD2d 592, 592). In response to the plaintiff's prima facie showing,
the defendant raised a triable issue of fact regarding the validity of
the assignment under which the defendant allegedly assumed the
obligations of Hyunik Seo, a nonparty to this action, who was the
original borrower on the note. Therefore, the motion for summary
judgment in lieu of complaint should have been denied (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 402-403; Comforce Telecom, Inc. v Spears Holding Co. Inc., 42 AD3d 557; cf. Millenium Falcon Corp. v WRD Sales, Inc., 46 AD3d 862, 863).

Under the circumstances presented, Hyunik Seo, the original
borrower on the note, should have been joined as a party to this action
(see CPLR 1001[a]; cf. Friedman v Friedman, 125 AD2d 539, 540-541; Matter of Brener, 12 AD2d 452).

The bold is mine.

Halliwell v Gordon, 2009 NY Slip Op 03481 (App. Div., 2nd, 2009)

Finally, the Supreme Court erred in granting that branch of the
defendant's motion which was to dismiss the complaint, with prejudice,
on the alternative ground that the plaintiff failed to join Bumble as a
necessary party. The defendant failed to demonstrate that Bumble needed
to be a party if complete relief was to be accorded between the parties
or that Bumble would be inequitably affected by a judgment in this
action if it were not joined (see CPLR 1001[a]; Spector v Toys "R" [*3]Us, Inc., 12 AD3d 358, 359).

Leeward Isles Resorts, Ltd. v Hickox, 2009 NY Slip Op 03457 (App. Div., 1st, 2009)

Assuming the non-joined parties are necessary parties within the
meaning of CPLR 1001(a), defendant has not shown as a matter of law
that he is entitled to dismissal of the complaint for failure to join
them. Defendant contends that these parties are beyond the jurisdiction
of the court and cannot be joined. However, even if these parties were
shown to be beyond the jurisdiction of the court, consideration of the
factors enumerated in CPLR 1001(b) would support allowing the action to
proceed, especially as "dismissal for failure to join a necessary party
should eventuate only as a last resort" (L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1, 11 [2007] [internal quotation marks and citation omitted]).

The bold is mine.

De Bie v Tredegar Trust Co., 2009 NY Slip Op 03445 (App. Div., 1st, 2009)

None of the factors set forth in CPLR 1001(b) warranted proceeding
without the joinder of Joan and Alexis Jr. as necessary parties (see Nowitz v Nowitz, 37 AD3d 788
[2007]). First of all, plaintiff has an alternative forum for relief in
Virginia, where issues pertaining to the trust have been litigated for
over a decade. In its May 19, 2004 order, the Virginia court directed
the parties to "undertake to settle all remaining issues pertinent to
[Tredegar]'s prayer for aid and guidance not disposed of by this Order,
including, without limitation, undertaking to agree on a mutually acceptable division of the Trust into two parts"
(emphasis added), the very relief plaintiff seeks herein. By filing in
New York, plaintiff subverted the authority of the Virginia court,
which had agreed, in its 2004 order, to supervise settlement of the
parties' remaining disputes relating to the trust, including the
division of the trust into two parts.

Second, Joan and Alexis Jr. would be prejudiced if the New York
action were to proceed in their absence. Because plaintiff has sought
partition of his interest in the trust, his interests are not aligned
with those of his ex-wife and son. They do not stand to benefit from
the recovery of $10 million on account of alleged breaches of fiduciary
duty by the trustee; the complaint makes clear that plaintiff seeks
judgment restoring such losses "to the Plaintiff's partitioned trust,"
i.e., recovery of these sums would be for plaintiff's benefit only.

Third, plaintiff engaged in forum shopping by filing suit
against Tredegar in New York. Plaintiff concedes that he sought to
avoid litigating this case in Virginia, given that court's [*2]history of ruling "harshly" against his interest.

Fourth, it would not be feasible to fashion an appropriate
protective order. As the motion court recognized, the parties have a
"long and tortured history" in this matter, and the relief sought by
plaintiff, i.e., partition of his interest in the trust, would subvert
the terms of the settlement agreement.

Fifth, an effective judgment cannot be rendered in the absence
of Joan and Alexis Jr. The fact that plaintiff has not asserted any
claims against them is of no moment, given that the relief he seeks
would subvert the settlement agreement and, if he were to prevail,
diminish the value of their interests in the trust.

The bold is mine.

CPLR § 3126 and a long dissent

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Savin v Brooklyn Mar. Park Dev. Corp., 2009 NY Slip Op 03502 (App. Div., 2nd, 2009)

The Supreme Court also did not improvidently exercise its discretion in
denying that branch of the appellants' motion which was to vacate the
note of issue filed by the plaintiffs and extend their time to move for
summary judgment. The certificate of readiness contained no
misstatements or material errors and it was the appellants' own
failures to timely comply with court orders and discovery demands that
delayed the completion of discovery (see Lynch v Vollono, 6 AD3d 505; Ford v J.R.D. Mgt. Corp., 238 AD2d 307; Mardiros v Ghaly, 206 AD2d 413, 414).

The bold is mine.

Gibbs v St. Barnabas Hosp., 2009 NY Slip Op 03441(App. Div., 1st, 2009)

The record reflects that defendant Vinces moved to compel plaintiff
to provide a bill of particulars. This motion was withdrawn when
plaintiff served a bill of particulars. Subsequently, Vinces apparently
became dissatisfied with the bill of particulars plaintiff provided to
him. Hence, at a preliminary conference held after service of the bill
of particulars, plaintiff was ordered to provide a supplemental bill of
particulars. Plaintiff does assert that he should have insisted that he
not be required to serve a supplemental bill until after the completion
of discovery, since he was hard-pressed to further particularize his
contentions at that point. In any event, when a supplemental bill was
not furnished according to the schedule set forth in the preliminary
conference order, defendant moved again in that regard, which motion
resulted in the conditional order of preclusion under review.
[*2]

While it is true that
plaintiff did not timely comply with the court-ordered deadlines, the
delay was not lengthy, and defendant Vinces cannot claim prejudice
because of the tardy supplemental bill of particulars that plaintiff
ultimately furnished (see Marks v Vigo, 303 AD2d 306 [2003]).
There is no evidence that plaintiff's inaction was willful,
contumacious, or the result of bad faith. As a result, striking the
complaint as against Vinces would have been an overly drastic remedy
for plaintiff's delay in complying with discovery (see Cooper v Shepherd, 280 AD2d 337 [2001]). That the Court of Appeals in Wilson v Galicia Contr. & Restoration Corp.
(10 NY3d 827 [2008]) upheld Supreme Court's enforcement of an order of
preclusion does not mean that Supreme Court's determination in this
case not to enforce such an order constituted such an abuse of
discretion as to warrant reversal.

McGUIRE, J. (dissenting)

The order on appeal granting defendant Vinces's motion to enforce a
conditional order precluding plaintiff from offering certain evidence
at trial to the extent of imposing a $500 disclosure sanction against
plaintiff should be modified, the conditional order, which became
absolute, should be enforced and the complaint as against Vinces should
be dismissed. Accordingly, I dissent.

Continue reading “CPLR § 3126 and a long dissent”

CPLR R. 327

CPLR R. 327 Inconvenient forum

(a)
When the court finds that in the interest of substantial justice the
action should be heard in another forum, the court, on the motion of
any party, may stay or dismiss the action in whole or in part on any
conditions that may be just. The domicile or residence in this state of
any party to the action shall not preclude the court from staying or
dismissing the action.


Turay v Beam Bros. Trucking, Inc., 2009 NY Slip Op 03510 (App. Div., 2nd, 2009)

New York courts are not compelled to retain jurisdiction over any case which does not have a substantial nexus to New York (see Silver v Great Am. Ins. Co., 29 NY2d 356, 361; Wentzel v Allen Mach., 277 AD2d 446, 447; United Jersey Bank v Weintraub, 240 AD2d 656; Dawson v Seenardine, 232 AD2d 521; Stamm v Deloitte and Touche, 202 AD2d 413; Manaster v Northstar Tours, 193
AD2d 651, 651-652). The doctrine of forum non conveniens, which
embodies this principle, is codified in CPLR 327(a): "When the court
finds that in the interest of substantial justice the action should be
heard in another forum, the court, on the motion of any party, may stay
or dismiss the action in whole or in part on any conditions that may be
just. The domicile or residence in this state of any party to the
action shall not preclude the court from staying or dismissing the
action."

On a motion to dismiss on the ground of forum non conveniens,
the burden is on the movant to demonstrate the relevant private or
public interest factors that militate against a New York court's
acceptance of the litigation (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479, cert denied 469 US 1108; Stravalle v Land Cargo, Inc., 39
AD3d 735, 736). Among the factors the court must weigh are the
residency of the parties, the potential hardship to proposed witnesses
including, especially, nonparty witnesses, the availability of an
alternative forum, the situs of the underlying actionable events, the
location of evidence, and the burden that retention of the case will
impose upon the New York courts. No single factor controls, so that the
fact that a particular litigant resides in New York is not dispositive (see Smolik v Turner Constr. Co., 48 AD3d 452, 454; Kefalas v Kontogiannis, 44 AD3d 624, 625; Brinson v Chrysler Fin., 43 AD3d 846, 848; Stravalle v Land Cargo, Inc., 39
AD3d at 736). A court's determination will not be disturbed on appeal
unless that court failed to properly consider all the relevant factors
or improvidently exercised its discretion in deciding the motion (see Smolik v Turner Constr. Co., 48 AD3d at 454; Rosenberg v Stikeman Elliott, LLP, 44 AD3d 840, 841).

Here, even accepting that Turay is a resident of New York, the motion should have been granted (see Smolik v Turner Constr. Co., 48
AD3d at 453). The record establishes that the collision occurred in
North Carolina, and police and medical personnel from that state were
involved in the case and will likely be necessary and important
witnesses (see Cheggour v R'Kiki, 293 AD2d 507, 508). Moreover,
there is no record evidence, but only conclusory assertions, as to the
involvement of New York physicians (see Brinson v Chrysler Fin., 43
AD3d at 848). Also, the defendants have little or no connection to New
York. Further, the burden of adjudicating the case in New York, given
that North Carolina has the most significant nexus to the case,
militates against retaining the action in this state. Under the
circumstances, the Supreme Court improvidently exercised its discretion
in denying that branch of the defendants' motion which was to dismiss
the case on the ground of forum non conveniens.
[*3]

In order to assure the
availability of a forum for the action, our reversal and granting of
the branch of the defendants' motion which was to dismiss the complaint
pursuant to CPLR 327 is conditioned on the defendants stipulating to
waive jurisdictional and statute of limitations defenses as indicated
herein (see CPLR 327[a]; Cheggour v R'Kiki, 293 AD2d at 507).

The bold is mine.

CPLR R. 3217 “The right to discontinue a divorce action may be waived”

CPLR R. 3217 Voluntary discontinuance

(a) Without an order

Tutt v Tutt, 2009 NY Slip Op 03511 (App. Div., 2nd, 2009)

Pursuant to CPLR 3217(a)(1), a party may discontinue an action
without court order by serving "a notice of discontinuance at any time
before a responsive pleading is served or within twenty days after
service of the pleading asserting the claim, whichever is earlier."
Where no pleadings have been served, [*2]therefore,
the plaintiff has the "absolute and unconditional right" to discontinue
the action by serving a notice of discontinuance upon the defendant
without seeking judicial permission (Battaglia v Battaglia, 59 NY2d 778, revg on dissenting mem 90 AD2d 930, 933; see DeLuise v DeLuise, 288 AD2d 135, 136; Newman v Newman, 245 AD2d 353).

The right to discontinue a divorce action under CPLR 3217(a)(1)
may be waived, however, under circumstances demonstrating the
plaintiff's voluntary and knowing relinquishment of that right (see Minkow v Metelka, 46 AD3d 864; cf. Giambrone v Giambrone,
140 AD2d 206, 207). "A valid waiver requires no more than the voluntary
and intentional abandonment of a known right which, but for the waiver
would have been enforceable," and it "may arise by either an express
agreement or by such conduct or a failure to act as to evince an intent
not to claim the purported advantage" (Golfo v Kycia Assoc., Inc., 45 AD3d 531, 532-533 [internal quotation marks omitted]; see Peck v Peck,
232 AD2d 540). "A so-ordered stipulation is a contract between the
parties thereto and as such, is binding on them and will be construed
in accordance with contract principles and the parties' intent" (Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447 [internal quotation marks omitted]).

By the clear and unambiguous terms of the so-ordered stipulation
here, the husband waived his right to serve a notice of discontinuance
more than 20 days after December 1, 2006, and thereby discontinue the
action pursuant to CPLR 3217(a). His notice of discontinuance served in
November 2007, therefore, was a nullity, and the Supreme Court properly
vacated it upon the wife's motion.

The bold is mine

Law of the case

Kleinser v Astarita, 2009 NY Slip Op 03401 (App. Div., 1st, 2009)

Plaintiff pro se served an amended complaint without leave of the
court in which he named as additional defendants four partners of the
law firm that had represented him in the underlying action. Defendants
moved to dismiss the amended complaint on the ground that the newly
added partners had no connection with the underlying action or contact
with plaintiff. The motion court, after noting that the amended
complaint was improperly served without court leave, dismissed it as
against the newly added partners for failure to state a cause of action
as against them "in their individual capacity." Several months later,
plaintiff moved for leave to add the same four partners, submitting a
proposed second amended complaint that was the same as the first except
that it added an allegation that the four were partners of the firm at
the time of the alleged malpractice "and are each individually, jointly
and severally, liable for the acts and omissions of their partners."
The motion court characterized the claim against the proposed four new
defendants as "colorable," citing Partnership Law § 26, and
granted plaintiff leave to add them.

On appeal, defendants do not argue that the amended complaint
fails to state a cause of action as against the four newly added
defendants, but rather that the court, in permitting their joinder,
violated the law of the case doctrine, exceeded its authority by
exercising appellate jurisdiction to sua sponte vacate its own order,
and erroneously granted what was actually an untimely motion to
reargue. The law of the case doctrine, however, is not implicated
because the court did not alter a ruling by another court of coordinate
jurisdiction but rather its own ruling (Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333
[2009]). "[E]very court retains continuing jurisdiction to reconsider
its [own] prior interlocutory orders during the pendency of the action"
(Liss v Trans Auto Sys., 68 NY2d 15, 20 [1986]), and may do so "regardless of statutory time limits concerning motions to reargue" (id.).
Thus, even if plaintiff's motion for leave to add the four partners
were a belated motion to reargue the prior order dismissing the action
as against those partners for failure to state a cause of action, the
court had discretion to [*2]reconsider
its prior order, sua sponte, and correct it. Such discretion was
properly exercised here in view of plaintiff's pro se status.

The bold is mine.

State Farm Indem. Co. v Yong Hua Lian, 2009 NY Slip Op 50805(U) (App. Term, 2nd, 2009)

With respect to the remaining portion of the order, we note that,
contrary to the contention of defendant, the motion court did not
violate the doctrine of law of the case by allegedly overruling the
prior "so-ordered" stipulation and substituting its own order therefor.
The doctrine of law of the case is not applicable to prior discovery
orders (see e.g. Sullivan v Nigro, 48 AD3d 454 [2008]; Sunshine Care Corp. v Novick, 19 Misc 3d 143[A],
2008 NY Slip Op 51101[U] [App Term, 9th & 10th Jud Dists 2008]). It
is also noted that this court, as an appellate court, is not bound by
the law of the case doctrine (see Latture v Smith, 304 AD2d 534 [2003]; see also Sunshine Care Corp.,19
Misc 3d 143[A], 2008 NY Slip Op 51101[U]). Accordingly, inasmuch as
defendant raised no other objection to the remaining portion of the
order, the order, insofar as reviewed, is affirmed.

The bold is mine.

CPLR § 3101(c) & (d) EUO Reports and Privilege

CPLR § 3101(c)  Attorney's work product. The work product of an attorney shall not be obtainable.

CPLR § 3101(d) Trial Preparation (2) Materials

I have this post on my other blog, and don't feel like copying and pasting it.  Head over there to check it out.  Ok fine, here is some of it:

Tomorrow's NYLJ has an interesting article from Evan H. Krinick (of LMK fame), a partner at Rivkin Radler.
Insurance Fraud: Examinations Under Oath And Attorney-Client Privilege,
discusses the circumstances swhere EUO reports prepared by counsel will
be privileged and not discoverable.

and all the way to the bottom.

Under this analysis, it looks like SIU
reports, memos, files, emails, etc. are fair game. For more information
on this issue (not SIU, privilege in general), have a look at People v. Kozlowski, 2008 NY Slip Op 07759, (Ct. App., 2008), and a recent article in the NYLJ that discusses the Kozlowski case (also available in part HERE). For other cases that have addressed the privilege issue recently, click HERE.

Yup, no middle here, to see the middle, go over to the other blog. 

CPLR R. 2106

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

The
statement of an attorney admitted to practice in the courts of the
state, or of a physician, osteopath or dentist, authorized by law to
practice in the state, who is not a party to an action, when subscribed
and affirmed by him to be true under the penalties of perjury, may be
served or filed in the action in lieu of and with the same force and
effect as an affidavit.


St. Vincent Med. Care, P.C. v Mercury Cas. Co., 2009 NY Slip Op 50810(U) (App. Term, 2nd, 2009)

In
opposition, plaintiff submitted an affirmation executed by its
principal, Dr. Zakharov. Defendant objected to said affirmation in its
reply papers, citing CPLR 2106. The submission of Dr. Zakharov's
affirmation was improper because he is a principal of plaintiff
professional corporation, which is a party to the action (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A] 2006 NY Slip Op 51055[U] [App Term 2d & 11th Jud Dists 2006]; see also Pisacreta v Minniti,
265 AD2d 540 [1999]). Since the Civil Court should not have considered
any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Plaintiff's remaining contentions lack merit.

The bold is mine.

The Appellate Division, Second Department decided a similar issue a few month's earlier in Lessoff v 26 Ct. St. Assoc. LLC, 2009 NY Slip Op 00195 (App. Div., 2d 2009).  In that case, the plaintiff was an attorney.  The Court found that CPLR R. 2106 prohibited him from using an affirmation.

CPLR R. 3212(a) — 120 day rule

CPLR R. 3212 Motion for summary judgment

(a) Time; kind of action

Tray-Wrap, Inc. v Pacific Tomato Growers, Ltd., 2009 NY Slip Op 03041 (App. Div., 1st, 2009)

Plaintiff asserts that the instant motions should be denied as untimely
because they were made without judicial leave more than 120 days after
the filing of the note of issue (see CPLR 3212[a]). It is undisputed
that defendants previously made timely motions for summary judgment. By
decision dated February 6, 2007, Supreme Court denied the same, without
prejudice to resubmission upon papers which were to include copies of
the pleadings. Such motions were made within a reasonable time
thereafter. Accordingly, the instant motions, although untimely, were
made with leave of the court upon a showing of good cause pursuant to
the statute.

The bold is mine.

22 NYCRR 202.27; Adjournments

22 NYCRR 202.27 Defaults

At any
scheduled call of a calendar or at any conference, if all parties do
not appear and proceed or announce their readiness to proceed
immediately or subject to the engagement of counsel, the judge may note
the default on the record and enter an order as follows:

(a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.

(b) If the defendant appears but the plaintiff does
not, the judge may dismiss the action and may order a severance of
counterclaims or cross-claims.

(c) If no party appears, the judge may make such order as appears just.

Vorontsova v Priolo, 2009 NY Slip Op 03053 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.),
entered February 13, 2008, which, in an action for medical malpractice,
denied plaintiff's motion to vacate the court's dismissal of the action
due to plaintiff's failure to proceed to trial, unanimously reversed,
on the law and the facts, without costs, the motion granted, and the
action restored to the trial calendar.

The court improvidently exercised its discretion in sua sponte
dismissing the action for failure to proceed to trial rather than
marking it off the trial calendar. The record shows that defendants had
not moved for dismissal of the action, that this was the first time
plaintiff had sought an adjournment, which the parties had agreed to
due to the unavailability of plaintiff's expert, and that both parties
appeared at the calendar call although plaintiff's counsel had to
temporarily leave to tend to another matter (see 22 NYCRR 202.27; Danne v Otis El. Corp., 31 AD3d 599 [2006]; Rodriguez v Pisa Caterers,
146 AD2d 686 [1989]). Furthermore, in seeking restoration, plaintiff
sufficiently demonstrated both a reasonable excuse and a meritorious
cause of action (CPLR 5015[a]).

The bold is mine