Landlord appeals from an order of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), dated March 9, 2007, which denied landlord's motion to vacate his default in failing to appear at a calendar call and to restore the holdover summary proceeding to the calendar. Landlord purports to appeal from 1) a decision of the same court and Judge, dated March l, 2007, which dismissed the petition without prejudice upon landlord's default, and 2) an order (same court and Judge), dated July 3, 2008, which reduced to writing the aforesaid decision of March l, 2007.

Per Curiam.
Order (Peter M. Wendt, J.), dated March 9, 2007,
reversed, without costs, motion granted, petition reinstated, default order vacated, and matter remanded for further proceedings. Appeals from decision (Peter M. Wendt, J.), dated March 1, 2007, and default order (Peter M. Wendt, J.), dated July 3, 2008, dismissed, without costs, as nonappealable.

In the circumstances here present, we exercise our discretion to relieve petitioner-landlord of his brief calendar default. The record shows that landlord's counsel arrived in court within 40 minutes of the appointed time and within several minutes of the court's default ruling, after the attorney advised court personnel by telephone that he had prepared a stipulation memorializing the proposed settlement agreement placed on the record the previous day, and that his arrival would be "a little late." Counsel's failure to timely appear "was not of such magnitude as to defeat the well-settled policy favoring the disposition of actions on their merits rather than upon procedural mishaps" (Framapac Delicatessen v Wolf, 160 AD2d 168 [1990]), and constituted excusable law office failure (see Rugieri v Bannister, 22 AD3d 299 [2005], affd in relevant part 7 NY3d 742 [2006]). Nor is the sufficiency of the landlord's affidavit of merit seriously contested. In this posture, landlord's motion to vacate the default, filed one day after the calendar [*2]default, should have been granted. We note that tenant's election to vacate the apartment premises during the pendency of landlord's vacatur motion did not affect the court's jurisdiction to consider the nonpossessory claims set forth by landlord in the holdover petition.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 29, 2009