Biton v. Turco

• Decision Date: 13 October 2011
• Citation: 2011 N.Y. Slip Op. 07189,88 A.D.3d 519,930 N.Y.S.2d 876
• Parties: Crystal BITON, Plaintiff–Appellant,v.Joe TURCO, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 519

930 N.Y.S.2d 876

2011 N.Y. Slip Op. 07189

Crystal BITON, Plaintiff–Appellant,

v.Joe TURCO, et al., Defendants–Respondents.

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

Oct. 13, 2011.

OPINION TEXT STARTS HERECrystal Biton, appellant pro se.Morgan Melhuish Abrutyn, New York (Douglas S. Langholz of counsel), for respondents.

Orders, Supreme Court, New York County (Milton A. Tingling, J.), entered February 16, 2011 and on or about December 13, 2010, which denied plaintiff's motion to vacate a prior order that dismissed the action pursuant to 22 NYCRR 202.27(b) for her failure to appear at a preliminary conference, unanimously affirmed, without costs. Orders, same court and Justice, entered January 12, 2010 and January 6, 2010, which denied plaintiff's motion seeking admissions from defendants as to the allegations in the complaint, unanimously affirmed, without costs.

A motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) must be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action ( see Donnelly v. Treeline Cos., 66 A.D.3d 563, 889 N.Y.S.2d 2 [2009] ). The showing of merit necessary to vacate a section 202.27 default*877 is less than what is necessary for opposing a motion for summary judgment ( see Goodwin v. New York City Hous. Auth., 78 A.D.3d 550, 913 N.Y.S.2d 149 [2010] ).

Here, even assuming plaintiff alleged a reasonable excuse for the failure to appear at the conference based on law office failure, the court did not improvidently exercise its discretion in denying plaintiff's motion to vacate the default on the ground that she failed to show a meritorious cause of action ( see e.g. Chiaramonte v. Coppola, 81 A.D.3d 426, 915 N.Y.S.2d 560 [2011]; DeRosario v. New York City Health & Hosps. Corp., 22 A.D.3d 270, 802 N.Y.S.2d 406 [2005]; Fink v. Antell,19 A.D.3d 215, 796 N.Y.S.2d 524 [2005]; Ortiz v. Silver Dollar Tr. Inc., 10 A.D.3d 585, 781 N.Y.S.2d 896 [2004] ).

CATTERSON, J.P., RICHTER, MANZANET–DANIELS, ROMÁN, JJ., concur.