Opinion
2014-09040 Index No. 19723/09.
03-09-2016
NATURAL PRODUCT IMPORT AMERICA, INC., et al., appellants, v. J & J EXPRESS TRUCKING CORPORATION, et al., defendants, Universal Maritime Service Corp., respondent.
Kevin Kerveng Tung, P.C., Flushing, N.Y., for appellants. Freehill Hogan & Mahar LLP, New York, N.Y. (Michael Fernandez and William Yost of counsel), for respondent. The Law Offices of Giacchino J. Russo & Associates, P.C., Flushing, N.Y. (Thailary Lim of counsel), for defendant Mai Jin H–Sealink Number 0099125.
Kevin Kerveng Tung, P.C., Flushing, N.Y., for appellants.
Freehill Hogan & Mahar LLP, New York, N.Y. (Michael Fernandez and William Yost of counsel), for respondent.
The Law Offices of Giacchino J. Russo & Associates, P.C., Flushing, N.Y. (Thailary Lim of counsel), for defendant Mai Jin H–Sealink Number 0099125.
Opinion
In an action, inter alia, to recover damages for negligence and conversion, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated July 22, 2014, as denied their motion (a) pursuant to CPLR 5015(a) to vacate an order of the same court (Weinstein, J.) dated January 24, 2013, entered upon their failure to appear at certain pretrial conferences, directing the dismissal of the complaint, and (b) to restore the action to the trial calendar.
ORDERED that the order dated July 22, 2014, is affirmed insofar as appealed from, with costs.
To vacate their default in appearing at two pretrial conferences, the plaintiffs were required to demonstrate both a reasonable excuse for their default and the existence of a potentially meritorious cause of action (see CPLR 5015[a]1; Thomas v. Avalon Gardens Rehabilitation & Health Care Ctr., 107 A.D.3d 694, 694, 966 N.Y.S.2d 505; Antoine v. Bee, 26 A.D.3d 306, 306, 812 N.Y.S.2d 557; Gironda v. Katzen, 19 A.D.3d 644, 644, 798 N.Y.S.2d 109). The plaintiffs failed to proffer a reasonable excuse for their failure to appear (see Grippi v. Balkan Sewer & Water Main Serv., 66 A.D.3d 837, 838, 886 N.Y.S.2d 614; Brownfield v. Ferris, 49 A.D.3d 790, 791, 855 N.Y.S.2d 565; Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d 553, 554, 725 N.Y.S.2d 76; De Vito v. Marine Midland Bank, 100 A.D.2d 530, 531, 473 N.Y.S.2d 218). In view of the lack of a reasonable excuse, it is unnecessary to consider whether they demonstrated the existence of a potentially meritorious cause of action (see Vitolo v. Suarez, 130 A.D.3d 610, 612, 13 N.Y.S.3d 177; EMC Mtge. Corp. v. Lamb, 126 A.D.3d 669, 669, 5 N.Y.S.3d 208; Selechnik v. Law Off. of Howard R. Birnbach, 120 A.D.3d 1220, 1220, 991 N.Y.S.2d 894).
Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion pursuant to CPLR 5015(a) to vacate an order dated January 24, 2013, entered upon their default, and to restore the action to the trial calendar.
MASTRO, J.P., LEVENTHAL, AUSTIN and LaSALLE, JJ., concur.