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JOSEPH TYBERG et al., Appellants, v. ISRAEL NEUSTEIN, Respondent, et al., Defendant.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.

The action was dismissed when the plaintiffs' counsel failed to appear on the date set for trial ( see 22 NYCRR 202.27 [b]). To be relieved of the default in appearing, the plaintiffs were required to demonstrate both a reasonable excuse for the default and a meritorious cause of action ( see CPLR 5015 [a] [1]; Solomon v. Ramlall, 18 AD3d 461; Echevarria v. Waters, 8 AD3d 330; Precision Envelope Co. v. Marcus Co., 306 AD2d 263, 264). The affirmation of the plaintiffs' counsel demonstrated a reasonable excuse for his failure to appear on the date of trial ( see Bazzini v. Hertz Corp., 183 AD2d 691; Chery v. Anthony, 156 AD2d 414, 416; Berman v. Brunswick Hosp. Ctr., 94 AD2d 736; Hargett v. Health Hosps. Corp. of City of N.Y., 88 AD2d 633). Furthermore, the plaintiffs demonstrated that they have a potentially meritorious cause of action ( see Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668; Carnazza v. Shoprite of Staten Is., 12 AD3d 393; Kopinska v. Metal Bright Maintenance Co., 309 AD2d 633; Rothstein v. State of New York, 284 AD2d 130, 131). Accordingly, the Supreme Court improvidently exercised its discretion in denying the motion.

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TYBERG v. NEUSTEIN
(Sep 6, 2005)