MIZRACHY v. JORDAN

The motion court's refusal to vacate plaintiff's default in failing to comply with an order requiring her to file a note of issue by a date certain was improper since plaintiff has demonstrated a meritorious cause of action, a reasonable excuse for the delay in seeking to restore the action to the calendar, a lack of intent to abandon the action, and a lack of prejudice to defendant (Indrunas v. Escher Construction Corp., 277 A.D.2d 28, 716 N.Y.S.2d 10; Ronsco Construction Co. v. 30 East 85th Street Co., 219 A.D.2d 281, 284). The submission of the verified complaint and affidavit, coupled with the expert affidavits of neurologists, established the merits of plaintiff's claim that she sustained a "serious injury" within the meaning of Insurance Law § 5102(d) (see, e.g. Licari v. Elliott, 57 N.Y.2d 230).

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