Pearlman v. Pearlman

—In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Kings County (Platt, J.H.O.), dated August 20, 1997, which denied his motion to vacate a prior order of the same court, dated December 6, 1996, which, inter alia, dismissed the action upon the failure of the parties to appear at a preliminary conference, and to restore the action to the trial calendar.

Ordered that the order is reversed, as a matter of discretion, with costs, the plaintiff’s motion is granted, the order dated December 6, 1996, is vacated, and the action is restored to the trial calendar.

By order dated December 6, 1996, the court struck the complaint and the counterclaim due to the parties’ failure to appear at a preliminary conference. However, the plaintiff had filed a note of issue on October 22, 1996. Both parties denied *391receiving notice of the conference. Moreover, the defendant joined in the plaintiff’s motion to vacate the December 6, 1996, order and to restore the action to the trial calendar. Under these circumstances, requiring the parties to relitigate the various issues raised by the action and to have the parties again engage in discovery, forensics, and the appointment of a Law Guardian would be a waste of judicial resources (see, Kokalari v Kokalari, 166 AD2d 418). O’Brien, J. P., Thompson, Friedmann and Goldstein, JJ., concur.