Opinion
No. 2007-10862.
October 7, 2008.
In an action, inter alia, to recover damages for breach of a construction contract, the defendant ABR Construction, Inc., appeals, and the defendant Insurance Company of the State of Pennsylvania separately appeals from an order of the Supreme Court, Kings County (Ruditzky, J.), dated April 30, 2007, which granted the plaintiffs motion, in effect, to vacate its default in appearing for a scheduled court conference, to vacate the dismissal of the action pursuant to 22 NYCRR 202.27 (b), and to restore the action to the trial calendar.
Susan C. Warnock, New York, N.Y., for appellant ABR Construction, Inc.
Torre, Lentz, Gamell, Gary Rittmaster, LLP, Jericho, N.Y. (Lewis Stockman of counsel), for appellant Insurance Company of the State of Pennsylvania.
Leonard Lorin, Brooklyn, N.Y., for respondent.
Before: Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ.
Ordered that the order is affirmed, with costs.
The plaintiff's action was dismissed when neither the plaintiff nor its attorney appeared on the date set for a compliance conference. Accordingly, in order to vacate the dismissal and to restore the action to the calendar, the plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action ( see 22 NYCRR 202.27; Jones v New York City Hous. Auth., 13 AD3d 489; Kandel v Hoffman, 309 AD2d 904). It was within the Supreme Court's discretion to accept the plaintiffs excuse of law office failure ( see CPLR 2005), as it was supported by a "detailed and credible" explanation of the default ( Henry v Kuveke, 9 AE)3d 476, 479 [2004]; Gironda v Katzen, 19 AD3d 644, 645). Moreover, the supplemental affidavit of the plaintiffs president, with supporting evidence, demonstrated the existence of a meritorious cause of action.