Vacating a dismissal order.

Practice point: To vacate the dismissal order and restore the action to the trial calendar, a plaintiff is required to demonstrate both a reasonable excuse for the default in proceeding with trial and a potentially meritorious cause of action, pursuant to CPLR 5015[a][1].

Student note: Here, where the plaintiffs' trial attorney was actually engaged in another matter on the scheduled trial date, and this was his first request for an adjournment, the plaintiffs demonstrated a reasonable excuse for the default, notwithstanding the technical defect in counsel's affirmation of engagement. In addition, the affidavit of merit provided by the plaintiffs' medical expert was sufficient to establish the existence of a potentially meritorious cause of action.

Case: Piper-Rader v. Muslim, NY Slip Op 06592 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Defamation.