Nickita Gordon, Plaintiff, v. CITY OF NEW YORK (2021)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered November 25, 2019, which denied plaintiff's motion to vacate an order, same court, (Judith N. McMahon, J.), entered February 8, 2019, dismissing the complaint with prejudice, unanimously affirmed, without costs

The motion court providently exercised its discretion in finding that plaintiff has not proffered any reasonable excuse for the default (see CPLR 5015[a][1];  Navarro v. A. Trenkman Estate, Inc., 279 A.D.2d 257, 258, 719 N.Y.S.2d 34 [1st Dept. 2001]).  Plaintiff's contention that he did not appear for trial on January 28, 2019 because he made a calendaring error at the October 2018 pretrial conference, is directly belied by the transcript of that conference.

As to his failure to appear at the February 4 adjourned date, plaintiff contends, in sum, that defendants have failed to prove that he ever received notice of the new date.  Defense counsel's affirmation, attesting that she mailed the letter to plaintiff's last recorded address, meets defendants' burden of showing that they mailed the letter notifying plaintiff of the adjournment date to the proper address (see CPLR 2103[b][2];  Engel v. Lichterman, 62 N.Y.2d 943, 944–945, 479 N.Y.S.2d 188, 468 N.E.2d 26 [1984]).

Plaintiff points to defendants' admission that they have misplaced the certified mail receipts and tracking number, and argues that defendants have therefore failed to prove that they mailed him the letter or that he received it.  This argument is unavailing in light of counsel's properly executed affirmation of service.  In any event, all of plaintiff's arguments relating to proof of mailing are completely obviated by his admission in his appellant's brief that, as early as February 2017, some two years prior to the trial date and attempted mailing, he had moved from his Brooklyn record address to a new address in Queens.  Defendants properly attempted to serve plaintiff at his “last known address” (CPLR 2103[b][2];  see CPLR 2103[c] [service on party]), and plaintiff thus bears all of the blame for failing to receive notice.

Since plaintiff has failed to show a reasonable excuse for his default, his motion to vacate must be denied regardless of whether he has a potentially meritorious claim (see Hertz Vehs. LLC v. Westchester Radiology & Imaging, PC, 161 A.D.3d 550, 550, 77 N.Y.S.3d 393 [1st Dept. 2018];  M.R. v. 2526 Valentine LLC, 58 A.D.3d 530, 532, 871 N.Y.S.2d 131 [1st Dept. 2009]).