47 THAMES REALTY LLC v. ROBINSON

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

47 THAMES REALTY, LLC, appellant, v. Ellen ROBINSON, et al., respondents.

Decided: April 28, 2009

A. GAIL PRUDENTI, P.J., FRED T. SANTUCCI, ANITA R. FLORIO, and ARIEL E. BELEN, JJ. Kucker & Bruh, LLP, New York, N.Y. (John M. Churneftsky of counsel), for appellant. Beranbaum Menken Ben-Asher & Bierman LLP, New York, N.Y. (Mark H. Bierman of counsel), for respondents.

In a consolidated action, inter alia, for ejectment and to recover damages for use and occupancy, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated June 20, 2008, as denied its motion pursuant to CPLR 5015(a) to vacate an order of the same court (Harkavy, J.), dated February 6, 2008, which dismissed the complaint upon its failure to appear at a compliance conference, and to restore the action to the conference calendar.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The complaint in this action was dismissed when the plaintiff failed to appear for a compliance conference on February 6, 2008.   To be relieved of the default in appearing, the plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015[a][1];  Murray v. New York City Health & Hosps. Corp., 52 A.D.3d 792, 861 N.Y.S.2d 372;  Brownfield v. Ferris, 49 A.D.3d 790, 855 N.Y.S.2d 565;  Zeltser v. Sacerdote, 24 A.D.3d 541, 808 N.Y.S.2d 286;  Solomon v. Ramlall, 18 A.D.3d 461, 795 N.Y.S.2d 76).   In this case, the vague and unsubstantiated allegation of the plaintiff's counsel that he was “unaware” of the compliance conference because he was a “busy attorney” did not amount to a reasonable excuse (see St. Luke's Roosevelt Hosp. v. Blue Ridge Ins. Co., 21 A.D.3d 946, 801 N.Y.S.2d 617;  Solomon v. Ramlall, 18 A.D.3d 461, 795 N.Y.S.2d 76;  Fennell v. Mason, 204 A.D.2d 599, 612 N.Y.S.2d 416).   A court may, in its discretion, accept a claim of law office failure as satisfying the reasonable excuse requirement (see CPLR 2005;  Putney v. Pearlman, 203 A.D.2d 333, 612 N.Y.S.2d 919;  Vierya v. Briggs & Stratton Corp., 166 A.D.2d 645, 561 N.Y.S.2d 74).   In this case, the Supreme Court did not improvidently exercise its discretion in rejecting counsel's proferred excuse that the associate who scheduled the compliance conference had left his firm and had not told him about the compliance conference.   This excuse was asserted for the first time in the plaintiff's reply papers (see Murray v. New York City Health & Hosps. Corp., 52 A.D.3d 792, 861 N.Y.S.2d 372;  Parkin v. Ederer, 27 A.D.3d 633, 810 N.Y.S.2d 901;  Juseinoski v. Board of Educ. of City of N.Y., 15 A.D.3d 353, 790 N.Y.S.2d 162).   Furthermore, the plaintiff failed to submit an affidavit of merit from someone with personal knowledge in support of its motion (see Mosberg v. Elahi, 80 N.Y.2d 941, 590 N.Y.S.2d 866, 605 N.E.2d 353;  Salch v. Paratore, 60 N.Y.2d 851, 470 N.Y.S.2d 138, 458 N.E.2d 379;  Hassell v. New York Univ. Med. Ctr., 48 A.D.3d 632, 852 N.Y.S.2d 342;  Yushavayev v. Kopelman, 307 A.D.2d 996, 763 N.Y.S.2d 484;  Burke v. Klein, 269 A.D.2d 348, 703 N.Y.S.2d 203).

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