219 East 7th Street Housing Development Fund Corp. v. 324 East 8th Street Housing Development Fund Corp.
Opinion of the Court
By order dated September 14, 2005, the IAS court granted defendants-respondents ’ motions and cross motions for relief against plaintiff under CPLR 3126 to the extent of dismissing the complaint unless plaintiff provided certain discovery by October 31, 2005. After plaintiff failed to comply with that directive, the IAS court issued a further order, entered on or about November 18, 2005, which dismissed the complaint with prejudice and directed entry of judgment accordingly. By order entered May 22, 2006 (the May 2006 order), the IAS court denied plaintiffs subsequent motion to vacate the dismissal order “in light of plaintiffs pending appeal” of the dismissal order. We now reverse the May 2006 order and reinstate complaint.
Although plaintiff denominated the motion denied by the May 2006 order as one to vacate a default, the dismissal order was not rendered on default within the meaning of CPLR 5015 (a) (1), since plaintiff had appeared in opposition to the motions and cross motions to dismiss. Given that plaintiffs motion to vacate was based on evidence that had not previously been submitted to the IAS court, we exercise our discretion, in the interest of justice, to deem that motion to have sought renewal of the dismissal order pursuant to CPLR 2221 (e) (see Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377 [2001]), and, upon review, we find that the new evidence warranted reinstatement of the complaint. That evidence, including the affirmation of a psychiatrist and the affidavit of a licensed clinical social worker, establishes that plaintiffs former attorney failed to comply with the October 31, 2005 discovery deadline due to panic and anxiety attacks he was suffering as the result
Case-law data current through December 31, 2025. Source: CourtListener bulk data.