Opinion
Appeal No. 14306 14306A Index No. 301882/15E Case No. 2021-00124
10-07-2021
Raquel Rivera, etc., Plaintiff-Appellant, v. Shypri Realty Corp., et al., Defendants-Respondents. Appeal No. 14306-14306A Case No. 2021-00124
Ami Morgenstern, PLLC, Long Island City (Marc Andrew Williams of counsel), for appellant. Brooks, Berne & Herndon PLLC, Elmsford (Richard W. Berne of counsel), for respondents.
Ami Morgenstern, PLLC, Long Island City (Marc Andrew Williams of counsel), for appellant.
Brooks, Berne & Herndon PLLC, Elmsford (Richard W. Berne of counsel), for respondents.
Before: Manzanet-Daniels, J.P., Mazzarelli, Moulton, González, Pitt, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered January 7, 2021, which denied plaintiff's motion to vacate an order, same court (Laura G. Douglas, J.), dated November 15, 2018, which dismissed the action pursuant to 22 NYCRR 202.27(b), and to restore the action to the court calendar, unanimously affirmed, without costs.
A party seeking to vacate a default must demonstrate a reasonable excuse for failing to appear and a meritorious cause of action (see Brown v Suggs, 38 A.D.3d 329, 330 [1st Dept 2007]). Assessment of the sufficiency of the proffered excuse and dequacy of the merits, rests within the sound discretion of the court (see Mediavilla v Gurman, 272 A.D.2d 146, 148 [1st Dept 2000]). The court providently exercised its discretion in denying plaintiff's motion because her counsel offered a variety of excuses for the failure to appear at several preliminary conferences, none of which stood up to scrutiny, and inaccurately described the court's determination of its prior motion for the same relief. Moreover, the almost 20-month delay in seeking to vacate the dismissal order was also not adequately explained. In any event, plaintiff's affidavit was insufficient to demonstrate that her deceased husband fell in front of defendants' premises since she was not a witness and offered nothing to support her claim as to the location of the accident (see Adefioye v Volunteers of Am., 222 A.D.2d 246, 248 [1st Dept 1995]).