RUBENBAUER v. MEKELBURG

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

Donna RUBENBAUER, et al., respondents, v. Clifford D. MEKELBURG, et al., appellants.

Decided: October 31, 2005

BARRY A. COZIER, J.P., FRED T. SANTUCCI, DANIEL F. LUCIANO, STEVEN W. FISHER, and JOSEPH COVELLO, JJ. John T. Ryan, Riverhead, N.Y. (Robert F. Horvat of counsel), for appellants.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated November 9, 2004, which granted the plaintiffs' motion to vacate the dismissal of the complaint pursuant to 22 NYCRR 202.27(b) and to restore the action to the trial calendar.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, and the motion is denied.

 The complaint was dismissed pursuant to 22 NYCRR 202.27(b) after the plaintiffs' counsel failed to appear for oral argument on a pending motion.   To be relieved of the default in appearing, the plaintiffs were required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see Tyberg v. Neustein, 21 A.D.3d 896, 800 N.Y.S.2d 507;  Solomon v. Ramlall, 18 A.D.3d 461, 795 N.Y.S.2d 76).   The defendants do not challenge the reasonableness of the plaintiffs' excuse for the default, but claim only that the plaintiffs failed to establish a meritorious cause of action.   We agree that the plaintiffs did not make the requisite showing of merit (see Echevarria v. Waters, 8 A.D.3d 330, 777 N.Y.S.2d 724;  see also Solomon v. Ramlall, supra;  Bitterman v. Hurewitz, 15 A.D.3d 434, 789 N.Y.S.2d 450;  Kang v. LaGuardia Hosp., 12 A.D.3d 347, 784 N.Y.S.2d 148).   Thus, the Supreme Court improvidently exercised its discretion in granting the motion.

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