BROWNFIELD v. FERRIS (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated July 13, 2007, which denied their motion to vacate an order of the same court dated March 26, 2007, granting the defendant's oral application to dismiss the complaint upon, inter alia, their failure to appear at a compliance conference, and to restore the action to the calendar.

ORDERED that the order is affirmed, with costs.

 By order dated March 26, 2007, the Supreme Court granted the defendant's oral application to dismiss the complaint pursuant to 22 NYCRR 202.27(b) after the plaintiffs failed to appear at a scheduled compliance conference (see Zeltser v. Sacerdote, 24 A.D.3d 541, 542, 808 N.Y.S.2d 286).   To vacate the order granting the defendant's application to dismiss the complaint, the plaintiffs were required to demonstrate a reasonable excuse for their failure to appear at the conference and the existence of a meritorious cause of action (see CPLR 5015[a][1];  Watson v. New York City Tr. Auth., 38 A.D.3d 532, 533, 832 N.Y.S.2d 240;  Zeltser v. Sacerdote, 24 A.D.3d 541, 542, 808 N.Y.S.2d 286;  Echevarria v. Waters, 8 A.D.3d 330, 331, 777 N.Y.S.2d 724).   The conclusory statement by the plaintiffs' attorney that “one of the attorneys from the firm was away on vacation” was insufficient to excuse the default (see Fekete v. Camp Skwere, 16 A.D.3d 544, 545, 792 N.Y.S.2d 127;  Shmarkatyuk v. Chouchereba, 291 A.D.2d 487, 738 N.Y.S.2d 367;  Fuller v. Tae Kwon, 259 A.D.2d 662, 686 N.Y.S.2d 831).

 Furthermore, a pattern of willful default and neglect should not be excused (see Bowman v. Kusnick, 35 A.D.3d 643, 644, 827 N.Y.S.2d 258;  Wynne v. Wagner, 262 A.D.2d 556, 693 N.Y.S.2d 60).   The plaintiffs repeatedly failed to adequately comply with the court's discovery order until the defendant moved to dismiss the complaint.   Thereafter, the plaintiffs' attorney failed to appear for three scheduled compliance conferences.   The plaintiffs failed to explain this pattern of willful neglect (see Bowman v. Kusnick, 35 A.D.3d at 644, 827 N.Y.S.2d 258;  Wechsler v. First Unum Life Ins. Co., 295 A.D.2d 340, 341-342, 742 N.Y.S.2d 668;  Wynne v. Wagner, 262 A.D.2d 556, 693 N.Y.S.2d 60).

 Moreover, the plaintiffs failed to demonstrate the existence of a meritorious cause of action.   The affidavit of merit submitted in support of the plaintiffs' motion to vacate was devoid of any evidentiary facts or detail regarding the defendant's alleged acts of negligence (see Smith v. City of New York, 237 A.D.2d 344, 345, 655 N.Y.S.2d 419;  Reilly-Whiteman, Inc. v. Cherry Hill Textiles, 191 A.D.2d 486, 487, 596 N.Y.S.2d 708;  Lener v. Club Med, 168 A.D.2d 433, 435, 562 N.Y.S.2d 556), and the complaint, which also contained conclusory assertions, was verified by the plaintiffs' attorney and not by an individual with personal knowledge (see McKenna v. Solomon, 255 A.D.2d 496, 496-497, 681 N.Y.S.2d 59;  Terranova v. Gallagher Truck Ctr., 121 A.D.2d 621, 621-622, 503 N.Y.S.2d 650;  Oversby v. Linde Div. of Union Carbide Corp., 121 A.D.2d 373, 373-374, 503 N.Y.S.2d 85).

Accordingly, the plaintiffs' motion to vacate the order dated March 26, 2007, was properly denied.