MACPHERSON v. 80 VARICK STREET GROUP (2009)

Supreme Court, Appellate Division, First Department, New York.

Donald MACPHERSON, Plaintiff-Appellant, v. 80 VARICK STREET GROUP, L.P., et al., Defendants-Respondents.

Decided: March 10, 2009

MAZZARELLI, J.P., SAXE, NARDELLI, DeGRASSE, FREEDMAN, JJ.

David A. Kaminsky & Associates, P.C., New York (Martin Gerald Dobin of counsel), for appellant. Goldberg Segalla LLP, White Plains (Angela Delfino-Vitali of counsel), for 80 Varick Street Group, L.P., 80 Varick Street Realty Corp., Michael Saperstein, Mark Ramer, Scott J. Leisner and IAB Management, Inc., respondents. Barry, McTiernan & Moore, New York (Laurel A. Wedinger of counsel), for Pale Realty Corp. and/or Pale Management Corp., respondents.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered November 1, 2007, which denied plaintiff's motion to vacate an order dismissing the action and restore the case to the calendar, unanimously affirmed, without costs.

Plaintiff proffered a reasonable excuse for his default, i.e., that he never received notice of the preliminary conference, at which indeed neither side appeared (see Grant v. Rattoballi, 57 A.D.3d 272, 273, 869 N.Y.S.2d 53 [2008] ). However, he failed to proffer facts showing that he has a meritorious cause of action (see Rugieri v. Bannister, 7 N.Y.3d 742, 819 N.Y.S.2d 861, 853 N.E.2d 231 [2006] ).

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