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Baptiste v Harvard Club of N. Y. Found. (2003 NY Slip Op 51669(U))
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Decided on December 22, 2003
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ. NO. 2002-1093 K C
KARL JEAN BAPTISTE, Appellant, -
against
HARVARD CLUB OF NEW YORK FOUNDATION and REMCO MAINTENANCE CORP.,
Respondents. REMCO MAINTENANCE CORP., Third -Party Plaintiff-Respondent, - MINEROS
ENTERPRISES INC., and MINEROS ENTERPRISES, INC., a/k/a POLONIA SERVICE CO.,
INC., Third -Party Defendants -Respondents.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (B. Battaglia, J.), entered on April 25, 2002, as denied his cross motion to restore the case to the trial calendar.
Order insofar as appealed from reversed without costs and plaintiffs motion to restore the case to the trial calendar granted on condition that plaintiffs attorney pay defendant the sum of $500 within 30 days of service of a copy of the order entered hereon with notice of entry.
We find that the court below improvidently exercised its discretion in denying the motion
file:///C|/Users/Peter/Desktop/NY/2/2003_51669.htm[4/21/2013 1:14:38 PM] Baptiste v Harvard Club of N. Y. Found. (2003 NY Slip Op 51669(U))
where plaintiff demonstrated a reasonable excuse for the default, a meritorious cause of action, a [*2]lack of intent to abandon and a lack of prejudice to the defendant. In light of the strong policy to dispose of cases on the merits, the motion should be granted on condition that plaintiffs counsel pay the sum of $500 to defendant.
Pesce, P.J., , and Aronin, J., concur.
Patterson., J., dissents in a separate memorandum.
Patterson J., dissents and votes to affirm the order in the following memorandum:
Plaintiff did not move to restore the case to the calendar within one year after it was dismissed (see Uniform Civil Rules for the New York City Civil Court [22 NYCRR]

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