Pena v. Pinnacle Assoc. II NY LLC

Pena v Pinnacle Assoc. II NY LLC (2019 NY Slip Op 08600)

Pena v Pinnacle Assoc. II NY LLC

2019 NY Slip Op 08600

Decided on December 3, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 3, 2019
Acosta, P.J., Renwick, Mazzarelli, Kapnick, JJ.

162616/14 -10477B 10477A 10477

[*1] Ivan Pena, Plaintiff-Appellant,

v

Pinnacle Associates II NY LLC, Defendant-Respondent, R & L Construction, Inc., et al., Defendants. [And a Third-Party Action]

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Christopher J. Soverow of counsel), for appellant.

Mischel & Horn, New York (Christen Giannaros of counsel), for respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered December 21, 2018, which denied plaintiff's motion to vacate an order of dismissal entered May 14, 2018, restore the case to active status on the trial calendar, and set down a new trial date, unanimously reversed, on the facts, without costs, and the motion granted. Order, same court and Justice, entered May 14, 2018, which denied plaintiff's motion for summary judgment as academic, unanimously reversed, on the law, without costs, and the matter remanded to Supreme Court for consideration of the motion. Appeal from aforesaid order of dismissal, unanimously dismissed, without costs, as subsumed in the appeal from the December 21, 2018 order.

Plaintiff demonstrated both a reasonable excuse for his default and a meritorious claim (see Gibbs v St. Barnabas Hosp., 16 NY3d 74 [2010]). He submitted an affirmation by his counsel and an affidavit by counsel's calendar clerk that established law office failure and an affidavit of merit sufficient to raise an issue of fact as to the merit of his claim (see Nieves v Citizens Advice Bur. Jackson Ave. Family Residence, 140 AD3d 566 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2019

CLERK