Opinion
2020–01087 Index No. 600446/16
07-12-2023
Gerard J. CRUDELE, appellant, v. Jennifer C. PRICE, et al., respondents.
Krentsel Guzman & Herbert, LLP (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for appellant. Bartlett LLP, Melville, NY (Robert G. Vizza of counsel), for respondents Jennifer C. Price and Smithtown Fire Department. McCabe & Mack, LLP, Poughkeepsie, NY (James E. Kimmel of counsel), for respondents Michael Caruso and Lorraine Caruso.
Krentsel Guzman & Herbert, LLP (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for appellant.
Bartlett LLP, Melville, NY (Robert G. Vizza of counsel), for respondents Jennifer C. Price and Smithtown Fire Department.
McCabe & Mack, LLP, Poughkeepsie, NY (James E. Kimmel of counsel), for respondents Michael Caruso and Lorraine Caruso.
BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, WILLIAM G. FORD, BARRY E. WARHIT, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated January 17, 2020. The order denied the plaintiff's motion pursuant to CPLR 3404 to restore the action to the trial calendar.
ORDERED that the order is affirmed, with one bill of costs.
In October 2015, the plaintiff allegedly was injured when an ambulance in which he was being transported collided with another vehicle. In January 2016, the plaintiff commenced this action to recover damages for personal injuries. He filed a note of issue in December 2018. The Supreme Court advised the parties via email that the matter was scheduled for a conference on April 30, 2019. On April 30, 2019, the plaintiff's counsel failed to appear at the conference. In a determination made on the record, the court noted the plaintiff's default in appearing, and his delay in producing an effective authorization for certain relevant medical records. On the record, the court expressly directed dismissal of the action pursuant to 22 NYCRR 202.27 based upon the plaintiff's counsel's failure to appear at the conference, and advised defense counsel to "order the minutes, have them so ordered, whatever you would like, that is the order of the Court."
In May 2019, the plaintiff moved pursuant to CPLR 3404 to restore the action to the trial calendar. In an order dated January 17, 2020, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.
As the Supreme Court properly determined, CPLR 3404 is not applicable since the court did not mark the case off the trial calendar, but rather expressly directed dismissal of the action pursuant to 22 NYCRR 202.27. "In order to vacate a default in appearing at a conference, the defaulting party must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense to the action" ( 126 Henry St., Inc. v. Cater, 197 A.D.3d 598, 600, 153 N.Y.S.3d 85 ; see Davis v. 574 Lafa Corp., 206 A.D.3d 613, 614–615, 170 N.Y.S.3d 126 ; Sposito v. Cutting, 165 A.D.3d 863, 863, 86 N.Y.S.3d 90 ; Perez v. New York City Hous. Auth., 47 A.D.3d 505, 850 N.Y.S.2d 75 ). The determination of whether an excuse is reasonable lies within the sound discretion of the trial court (see 126 Henry St., Inc. v. Cater, 197 A.D.3d at 600, 153 N.Y.S.3d 85 ). "A court may, in the exercise of its discretion, accept law office failure as a reasonable excuse" ( Davis v. 574 Lafa Corp., 206 A.D.3d at 615, 170 N.Y.S.3d 126 ; see CPLR 2005 ; Golden v. Romanowski, 128 A.D.3d 1009, 9 N.Y.S.3d 653 ). "However, ‘the party seeking to vacate the default must provide detailed allegations of fact that explain the failure’ " ( Davis v. 574 Lafa Corp., 206 A.D.3d at 615, 170 N.Y.S.3d 126, quoting Matter of Esposito, 57 A.D.3d 894, 895, 870 N.Y.S.2d 109 ).
Here, the Supreme Court providently exercised its discretion in declining to accept the plaintiff's proffered excuse of law office failure, i.e., that counsel failed to appear due to a "miscalendered" conference date caused by a "miscommunication in plaintiff counsel's office." Such excuse was not supported by a detailed and credible explanation, especially since the court emailed all counsel regarding the conference, and defense counsel called the plaintiff's counsel's office on the morning of the conference and confirmed that the conference had been calendered by the plaintiff's counsel's office (see Deep v. City of New York, 183 A.D.3d 586, 587, 123 N.Y.S.3d 174 ; Vujanic v. Petrovic, 103 A.D.3d 791, 792, 961 N.Y.S.2d 210 ).
In a footnote in his brief, the plaintiff contends for the first time on appeal that the Supreme Court never issued a formal order directing dismissal of the action since the transcript of the April 30, 2019 appearance was never "so ordered." Had that issue been raised at the proper juncture the court could have "so-ordered" the transcript (see Misicki v. Caradonna, 12 N.Y.3d 511, 519, 882 N.Y.S.2d 375, 909 N.E.2d 1213 ; Telaro v. Telaro, 25 N.Y.2d 433, 439, 306 N.Y.S.2d 920, 255 N.E.2d 158 ). Moreover, given the extensive record regarding the court's directive to dismiss the action pursuant to 22 NYCRR 202.27, "[t]hat an order of dismissal was never signed by the court and entered does not ... relieve [the] plaintiff of the burden of showing a reasonable excuse for [his] failure to appear at the conference and a meritorious cause of action, as required in a motion to vacate the dismissal of an action pursuant to 22 NYCRR 202.27" ( Perez v. New York City Hous. Auth., 47 A.D.3d at 505, 850 N.Y.S.2d 75 ). In this regard, this case is distinguishable from cases that are administratively dismissed without an express directive by the court on the record (cf. Wells Fargo, N.A. v. Parker, 210 A.D.3d 1128, 180 N.Y.S.3d 191 ; Bayview Loan Servicing, LLC v. Mosbacher, 191 A.D.3d 936, 139 N.Y.S.3d 553 ; Wells Fargo Bank, N.A. v. Drago, 170 A.D.3d 1083, 1084, 96 N.Y.S.3d 258 ).
BARROS, J.P., BRATHWAITE NELSON, FORD and WARHIT, JJ., concur.