Pabon v. Saunders , 748 N.Y.S.2d 253 ( 2002 )

Order, Supreme Court, Bronx County (Janice Bowman, J.), entered July 12, 2001, which, to the extent appealed, denied plaintiffs motion to vacate an order dismissing the action and to restore the action to the trial calendar, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted, the order of dismissal vacated and the case restored to the trial calendar.

Plaintiffs motion pursuant to CPLR 5015 (a) (1) to vacate the order of dismissal should have been granted based on his reasonable excuse for the default and his meritorious cause of action as demonstrated by his supporting affidavit (see Harwood v Chaliha, 291 AD2d 234). A decision on plaintiffs motion to restore on CPLR 3404 grounds was inappropriate here, in view of the fact that the previously filed note of issue had been stricken before the case was dismissed (see Johnson v Minskoff & Sons, 287 AD2d 233). However, since the court granted defendants’ motion to strike the note of issue on condition that discovery be completed within 60 days and defendants failed to fulfill this condition, the case should be restored to the trial calendar.

Defendant’s undecided motion for summary judgment may be renoticed. Concur — Nardelli, J.P., Saxe, Ellerin, Rubin and Friedman, JJ.