22 NYCRR 202.27 Defaults
At any
scheduled call of a calendar or at any conference, if all parties do
not appear and proceed or announce their readiness to proceed
immediately or subject to the engagement of counsel, the judge may note
the default on the record and enter an order as follows:
(a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.
(b) If the defendant appears but the plaintiff does
not, the judge may dismiss the action and may order a severance of
counterclaims or cross-claims.
(c) If no party appears, the judge may make such order as appears just.
Vorontsova v Priolo, 2009 NY Slip Op 03053 (App. Div., 1st, 2009)
Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered February 13, 2008, which, in an action for medical malpractice, denied plaintiff's motion to vacate the court's dismissal of the action due to plaintiff's failure to proceed to trial, unanimously reversed, on the law and the facts, without costs, the motion granted, and the action restored to the trial calendar.
The court improvidently exercised its discretion in sua sponte dismissing the action for failure to proceed to trial rather than marking it off the trial calendar. The record shows that defendants had not moved for dismissal of the action, that this was the first time plaintiff had sought an adjournment, which the parties had agreed to due to the unavailability of plaintiff's expert, and that both parties appeared at the calendar call although plaintiff's counsel had to temporarily leave to tend to another matter (see 22 NYCRR 202.27; Danne v Otis El. Corp., 31 AD3d 599 [2006]; Rodriguez v Pisa Caterers, 146 AD2d 686 [1989]). Furthermore, in seeking restoration, plaintiff sufficiently demonstrated both a reasonable excuse and a meritorious cause of action (CPLR 5015[a]).
The bold is mine
