Kramer v. Edenwald Construction Co. , 690 N.Y.S.2d 259 ( 1999 )

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about February 18, 1998, which, insofar as appealed from, granted plaintiffs’ motion to vacate their default in appearing for oral argument of third-party defendant’s motion for summary judgment dismissing all claims against third-party defendant, and, upon vacatur, denied such motion for summary judgment, unanimously affirmed, without costs.

Plaintiffs’ failure to appear for oral argument of third-party defendant’s motion for summary judgment was properly excused in view of plaintiffs’ timely submission of written opposition to the motion, their attorney’s representation that he was “under the erroneous belief that all motion papers would be marked ‘submitted’ because this was a motion for summary judgment”, the absence of any other indications of an intent on plaintiffs’ part to default in the action or delay it, and the absence of any showing by third-party defendant as to how it was prejudiced by this mistake (CPLR 2005; see, Deshler v East W. Renovators, 259 AD2d 351; Levy v Aquasciences Intl., 179 AD2d 566). On the merits, issues of fact exist as to third-party defendant’s participation and possible negligence in the reconstruction of the street where plaintiff fell. Concur — Sullivan, J. P., Williams, Rubin, Andrias and Friedman, JJ.