EBENSTEIN v. COLE CAB CORP

Given the totality of the circumstances, Supreme Court erred in denying, without explanation, vacatur of the CPLR 3404 dismissal at issue (see, Peterson v. City of New York, 286 A.D.2d 287, 730 N.Y.S.2d 58). Plaintiff sufficiently demonstrated that his case was meritorious, that there was a reasonable excuse for the delay, that there was no intent to abandon the matter, and that there was no prejudice to defendants (see, Peterson v. City of New York, supra; Ramputi v. Timko Contr. Corp., 262 A.D.2d 26; Nicholos v. Cashelard Rest., 249 A.D.2d 187). In this regard, plaintiff's submissions indicated that he suffered serious facial injuries and fractured teeth when the taxi cab in which he was a passenger was involved in a head-on collision with defendant Acosta's vehicle. As to the delay in seeking to vacate the default, any such delay seems to have resulted from legitimate confusion regarding the status of the case, and, considering that there was at least some legal activity during the year after the case was dismissed, it cannot be said that plaintiff abandoned this action (see, Peterson v. City of New York,supra). Finally, we fail to perceive any prejudice resulting from the delay in seeking to vacate the dismissal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.