Appellate Division of the Supreme Court of New York, 2005

Rubenbauer v. Mekelburg

Appellate Division of the Supreme Court of New York · Decided October 31, 2005

22 A.D.3d 826; 803 N.Y.S.2d 183

Cases that cite this one

9 later published cases cite this decision.

McClaren v. Bell Atlantic (Appellate Division of the Supreme Court of New York 2006)
Nahum v. Mansour (Appellate Division of the Supreme Court of New York 2013)
Nahum v. Mansour (Appellate Division of the Supreme Court of New York 2013)
American Home Assurance Co. v. Rahim (Appellate Division of the Supreme Court of New York 2011)
Fleet Mechanical Service Corp. v. Romaz Properties, Ltd. (Appellate Division of the Supreme Court of New York 2008)
Montero v. City of New York (Appellate Division of the Supreme Court of New York 2007)
Francis v. Long Island College Hospital (Appellate Division of the Supreme Court of New York 2007)
Gazetten Contracting, Inc. v. HCO, Inc. (Appellate Division of the Supreme Court of New York 2007)
Bollino v. Hitzig (Appellate Division of the Supreme Court of New York 2006)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Cohalan, J), dated November 9, 2004, which granted the plaintiffs’ mo*827tion to vacate the dismissal of the complaint pursuant to 22 NYCRR 202.27 (b) and to restore the action to the trial calendar.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, and the motion is denied.

The complaint was dismissed pursuant to 22 NYCRR 202.27 (b) after the plaintiffs’ counsel failed to appear for oral argument on a pending motion. To be relieved of the default in appearing, the plaintiffs were required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see Tyberg v Neustein, 21 AD3d 896 [2005]; Solomon v Ramlall, 18 AD3d 461 [2005]). The defendants do not challenge the reasonableness of the plaintiffs’ excuse for the default, but claim only that the plaintiffs failed to establish a meritorious cause of action. We agree that the plaintiffs did not make the requisite showing of merit (see Echevarria v Waters, 8 AD3d 330 [2004]; see also Solomon v Ramlall, supra; Bitterman v Hurewitz, 15 AD3d 434 [2005]; Kang v LaGuardia Hosp., 12 AD3d 347 [2004]). Thus, the Supreme Court improvidently exercised its discretion in granting the motion. Cozier, J.P., Santucci, Luciano, Fisher and Covello, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.