Marrero v. Nails
| Decision Date | 19 October 2010 |
| Citation | 77 A.D.3d 798,909 N.Y.S.2d 136 |
| Parties | Digna MARRERO, et al., appellants, v. Crystal NAILS, also known as Nail Art, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Stephen D. Chakwin, Jr., New York, N.Y., for appellants.
MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Catherine H. Friesen of counsel), for respondents Crystal Nails, also known as Nail Art, and Anna Limb.
Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick and Louisa Chan of counsel), for respondentsAnthony R. Spencer and Spencer Construction Corp.
REINALDO E. RIVERA, J.P., JOSEPH COVELLO, RANDALL T. ENG, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Nicolai, J.), entered June 30, 2009, which denied their motion to vacate an order of the same court entered November 14, 2007, dismissing the complaint upon, inter alia, their failure to appear at a compliance conference, and to restore the action, and (2) so much of an order of the same court entered December 24, 2009, as, in effect, denied that branch of their motion which was for leave to renew.
ORDERED that the order entered June 30, 2009, is affirmed; and it is further,
ORDERED that the order entered December 24, 2009, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the defendants.
The action was dismissed when, inter alia, the plaintiffs failed to appear at a compliance conference held on September 11, 2007 ( see 22 NYCRR 202.27[b] ). To be relieved of the default in appearing at that conference, the plaintiffs were required to show both a reasonable excuse for the default and the existence of a potentially meritorious cause of action ( see CPLR 5015[a][1]; Chechen v. Spencer, 68 A.D.3d 801, 802, 889 N.Y.S.2d 474; Barnave v. United Ambulette, Inc., 66 A.D.3d 620, 885 N.Y.S.2d 645; Brownfield v. Ferris, 49 A.D.3d 790, 791, 855 N.Y.S.2d 565). The excuse proffered by the plaintiffs' attorney, that he thought the conference date had been adjourned by the Supreme Court, did not constitute a reasonable excuse under the circumstances of this case ( see Matter of Lutz v. Goldstone, 31 A.D.3d 449, 819 N.Y.S.2d 66; Martinez v. Otis El. Co., 213 A.D.2d 523, 524, 624 N.Y.S.2d 43; Morris v. Metropolitan Transp. Auth., 191 A.D.2d 682, 595 N.Y.S.2d 539). Not only does the record reveal an overall lack of diligence by the plaintiffs in prosecuting their claims and in responding to discovery demands, but also a failure to demonstrate a reasonable excuse for the lengthy delay in bringing the motion to vacate the order dated November 14, 2007 ( see Brown v. Vanchieri, 64 A.D.3d 678, 881 N.Y.S.2d 909; Rodriguez v. Ng, 23 A.D.3d 450, 451, 805 N.Y.S.2d 570; Seven Acre Wood St. Assoc. v. Wood, 286 A.D.2d 432, 729 N.Y.S.2d 893; Piacentini v. Mineola Union Free School Dist., 267 A.D.2d 290, 291, 700 N.Y.S.2d 205; Martinez v. Otis El. Co., 213 A.D.2d...
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