Pichardo-Garcia v. Josephine's SPA Corp.

• Decision Date: 03 January 2012
• Citation: 2012 N.Y. Slip Op. 00004,91 A.D.3d 413,936 N.Y.S.2d 27
• Parties: Rosa Victoria PICHARDO–GARCIA, Plaintiff–Respondent, v. JOSEPHINE'S SPA CORP., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00004

91 A.D.3d 413

936 N.Y.S.2d 27

Rosa Victoria PICHARDO–GARCIA, Plaintiff–Respondent,

v.JOSEPHINE'S SPA CORP., Defendant–Appellant.

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

Jan. 3, 2012.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Andrew N. Adler of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, New York (Michael H. Zhu of counsel), for respondent.

GONZALEZ, P.J., ANDRIAS, DeGRASSE, RICHTER, ABDUS–SALAAM, JJ.

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about September 14, 2010, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to vacate an order of dismissal, and restored the action to the court calendar, unanimously reversed, on the law and the facts, without costs, and the motion denied. The Clerk is directed to enter judgment in defendant's favor dismissing the complaint.

In the absence of a determination by the motion court, pursuant to CPLR 5015(a)(1), of the reasonableness of plaintiff's proffered excuse for her failure to appear at a scheduled compliance conference, we reject the claim of law office failure as “conclusory and perfunctory” ( see Perez v. New York City Hous. Auth., 47 A.D.3d 505, 505, 850 N.Y.S.2d 75 [2008] ). Counsel explained that the failure to appear was due to a conflict between scheduled appearances in this action and in an unrelated action. However, he did not state that he took any steps to resolve or alleviate the conflict or that he was unaware of the conflict. Counsel's “overbooking of cases and inability to keep track of his appearances” does not constitute a reasonable excuse for the failure to appear ( id.; see also Youni Gems Corp. v. Bassco Creations Inc., 70 A.D.3d 454, 455, 896 N.Y.S.2d 315 [2010], lv. dismissed 15 N.Y.3d 863, 909 N.Y.S.2d 693, 936 N.E.2d 460 [2010] ). Moreover, plaintiff made no attempt to vacate the default until almost a year after being served with the notice of its entry ( see Youni, 70 A.D.3d at 455, 896 N.Y.S.2d 315).