N. Source, LLC v. Kousouros

• Decision Date: 21 May 2013
• Citation: 106 A.D.3d 571,2013 N.Y. Slip Op. 03607,966 N.Y.S.2d 377
• Parties: NORTHERN SOURCE, LLC, Plaintiff–Appellant, v. James KOUSOUROS, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 571
966 N.Y.S.2d 377
2013 N.Y. Slip Op. 03607

NORTHERN SOURCE, LLC, Plaintiff–Appellant,
v.
James KOUSOUROS, Defendant–Respondent.

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

May 21, 2013.

Claude Castro & Associates PLLC, New York (Claude Castro of counsel), for appellant.

Allan L. Brenner, Freeport, for respondent.

TOM, J.P., ACOSTA, RENWICK, DeGRASSE, RICHTER, JJ.

[106 A.D.3d 571]Order, Supreme Court, New York County (Paul G. Feinman, J.), entered February 24, 2012, which, in this action alleging legal malpractice, denied plaintiff's motion to vacate an order, same court and Justice, entered February 11, 2010, granting, on plaintiff's default, defendant's motion to dismiss the complaint for failure to prosecute after service of a 90–day notice to resume [106 A.D.3d 572]prosecution of the action and to file a note of issue, unanimously affirmed, without costs.

[966 N.Y.S.2d 378]

The motion court providently exercised its discretion in finding, pursuant to CPLR 5015(a)(1), that plaintiff did not provide a reasonable excuse for its failure to timely prosecute this action, and did not demonstrate that it had a meritorious cause of action ( see e.g. Carroll v. Nostra Realty Corp., 54 A.D.3d 623, 864 N.Y.S.2d 10 [1st Dept. 2008], lv. dismissed12 N.Y.3d 792, 879 N.Y.S.2d 38, 906 N.E.2d 1072 [2009];see also Johnson v. Minskoff & Sons, 287 A.D.2d 233, 236, 735 N.Y.S.2d 503 [1st Dept. 2001] ).

In seeking to establish a reasonable excuse, plaintiff relied on an affirmation from its new counsel, who did not represent plaintiff when it received the 90–day demand, when defendant moved to dismiss, or when the motion court dismissed the matter. Thus, plaintiff's counsel had no personal knowledge of the facts regarding plaintiff's default, and his affirmation did not suffice to establish a reasonable excuse ( see Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d 553, 725 N.Y.S.2d 76 [2d Dept. 2001] ).

Plaintiff similarly failed to set forth any valid excuse for its failure to move to vacate the judgment within one year, as required by CPLR 5015(a)(1) ( see Rosendale v. Aramian, 269 A.D.2d 209, 210, 703 N.Y.S.2d 108 [1st Dept. 2000] ). Plaintiff's affirmation from recent counsel contains no personal knowledge of any facts relating to the 16–month delay in moving to vacate.

Furthermore, plaintiff failed to submit sufficient evidence showing that it had a meritorious legal malpractice claim. Again, the affirmation from plaintiff's...