Dismissal for failure to appear at a calendar call.

Practice point: The Supreme Court, sua sponte, improperly dismissed the action pursuant to 22 NYCRR 202.27 on the ground that the plaintiffs failed “to proceed as directed by the court” when they did not appear on a scheduled court date. The plaintiffs demonstrated that they did not have notice of the trial calendar call of the action through the uncontroverted affidavit of their attorney, which stated that counsel did not receive any notice for a court appearance. Without notice of the court appearance, the default was a nullity, as was the remedy imposed by the Supreme Court as a consequence of the default.

Student note: In this situation, vacatur was required as a matter of law and due process, and no showing of a potentially meritorious cause of action was required.

Case: Pavlou v. Associates Food Stores, Inc., NY Slip Op 04982 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Worker’s fall from a ladder.