BROWN v. [And a Third-Party Action]. (2005)

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

Sophie BROWN, et al., Plaintiffs-Appellants, v. The AP & ASBP HOLDING COMPANY, INC., et al., Defendants-Respondents. [And a Third-Party Action].

Decided: October 27, 2005

FRIEDMAN, J.P., MARLOW, GONZALEZ, CATTERSON, JJ.

Rovegno & Taylor, P.C., Forest Hills (Robert B. Taylor of counsel), for appellants. The Law Office of Gould & Associates, New York (David R. Frank of counsel), for The AP & ASBP Holding Company, Inc., respondent. Smith & Laquercia, LLP, New York (Ava L. Zelenetsky of counsel), for MPT 59th Street, LLC, respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about July 9, 2005, which denied plaintiffs' motion to vacate a prior order dismissing the action pursuant to 22 NYCRR 202.27 and to restore the action to the appropriate pre-note of issue calendar, unanimously affirmed, without costs.

The motion was properly denied on the ground that plaintiffs' attorney failed to offer a reasonable excuse for his failure to appear at three consecutive compliance conferences (see Campos v. New York City Health & Hosps. Corp., 307 A.D.2d 785, 763 N.Y.S.2d 292 [2003] ). It was not incumbent on plaintiffs' attorney's adversary to serve the prior order with notice of entry, or otherwise advise plaintiffs that the action had been dismissed (cf. id.). Furthermore, plaintiffs' affidavit of merit, first offered in their reply, is not persuasive.

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