| Arshil C. v Meike |
| 2020 NY Slip Op 06701 |
| Decided on November 17, 2020 |
| 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: November 17, 2020
Before: Friedman, J.P., Renwick, Webber, González, JJ.
Index No. 350040/16 Appeal No. 12395N Case No. 2020-00049
v
Merle E. Meike, Defendant, Peter Simon, Defendant-Appellant.
James G. Bilello & Associates, Hicksville (Susan J. Mitola of counsel), for appellant.
Sacco & Fillas, LLP, Astoria (Boris Bernstein of counsel), for respondents.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about September 26, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for reargument of defendant Simon's fourth motion to dismiss and vacatur of an order dismissing the complaint for failure to appear for independent medical examinations and, upon reargument, ordered that the dismissal would be vacated only if the infant plaintiffs both appeared for such examinations within 30 days after service of a copy of the order with notice of entry, unanimously affirmed, without costs.
The motion court providently exercised its discretion in granting reargument to consider the fact that plaintiffs' school-mandated activities conflicted with the scheduled medical examinations (CPLR 2221[d]; see e.g. Sheridan v Very, Ltd., 56 AD3d 305 [1st Dept 2008]), and in conditionally reinstating the complaint. While plaintiffs missed several examinations, the record does not show that their noncompliance with the court's prior discovery orders was willful, contumacious or in bad faith (see e.g. Luna v Brodcom W. Dev. Co. LLC, 177 AD3d 516 [1st Dept 2019]).
We have considered Simon's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 17, 2020