In Goodwin v. New York City Housing Authority, the plaintiffs' action was dismissed for their attorney's failure to appear at a preliminary conference. The First Department vacated the default, finding that the showing of merit necessary to vacate a default under 22 NYCRR 202.27 for failure to appear at a court conference "is less than what is necessary for opposing a motion for summary judgment." Therefore, given the availablity of pictures of the accident location, coupled with plaintiff's inability to remember the accident because of the injuries he sustained, plaintiffs' action should not have been dismisssed.
The Court further found that law office failure was a reasonable excuse for the default.
Lastly, the Court felt compelled to comment, somewhat scathingly: "This court is all too familiar with this case, having reversed Supreme Court's wrongful dismissal of the complaint once before... The lawsuit stemming from this eight-year-old accident accident has now survived two mistaken dismissals. No discovery has taken place. It is time for discovery to commence and finish expeditiously so that plaintiffs' claims may be addressed on their merits."