Avagyan v. 100 W. 74th St., LLC , 2022 NY Slip Op 07291 ( 2022 )

Avagyan v 100 W. 74th St., LLC (2022 NY Slip Op 07291)

Avagyan v 100 W. 74th St., LLC

2022 NY Slip Op 07291

Decided on December 22, 2022

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 and Entered: December 22, 2022
Before: Webber, J.P., Friedman, Gesmer, Shulman, Rodriguez, JJ.

Index No. 155152/18 Appeal No. 16974 Case No. 2022-02062

[*1]Norayr Avagyan, Plaintiff-Appellant,

v

100 West 74th Street, LLC, et al., Defendants-Respondents.

William Schwitzer & Associates, P.C., New York (D. Allen Zachary of counsel), for appellant.

Order, Supreme Court, New York County (Arlene Bluth, J.), entered on or about May 3, 2022, which denied plaintiff's motion to vacate a sua sponte order dismissing the complaint, unanimously reversed, on the law, without costs, the motion to vacate granted, and the complaint reinstated.

It was an improvident exercise of the court's discretion to deny plaintiff's motion to vacate the court's sua sponte dismissal of this action. The motion appended an agreement between the parties to vacate the dismissal. Plaintiff's counsel also explained that he failed to file the discovery stipulation as the motion court directed in its notices as he expected the outstanding discovery issues to be handled at an upcoming conference. The outstanding discovery issues to be raised at the conference was discovery owed by defendants, not plaintiff. Moreover, the record shows no evidence that plaintiff was dilatory at any time during discovery. Based upon the above, the ultimate sanction of dismissal was not warranted (see Lee v 13th St. Entertainment LLC, 161 AD3d 631, 632 [1st Dept 2018]; see also Willner v S Norsel Realties LLC, 206 AD3d 545, 546 [1st Dept 2022]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 22, 2022