Opinion
5931 Index 108161/10
03-08-2018
In re Mary Ann Nicole LE MONDA, Petitioner–Appellant, v. CITY OF NEW YORK, et al., Respondents–Respondents.
Rutkin & Wolf PLLC, White Plains (Carmine Lippolis of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for respondents.
Rutkin & Wolf PLLC, White Plains (Carmine Lippolis of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for respondents.
Renwick, J.P., Richter, Andrias, Kapnick, Kahn, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 2, 2016, which denied petitioner's motion to vacate the January 15, 2013 dismissal of the proceeding brought pursuant to CPLR article 78 and restore the matter to the calendar, unanimously affirmed, without costs.
The motion, belatedly made more than three years after the pre-note of issue action had been dismissed after both petitioner and her counsel failed to appear at a status conference, was properly denied.
Petitioner's bare and unsubstantiated assertion of law office failure by her prior counsel is insufficient to establish a reasonable excuse for the default (see Youni Gems Corp. v. Bassco Creations Inc., 70 A.D.3d 454, 455, 896 N.Y.S.2d 315 [1st Dept. 2010], lv dismissed 15 N.Y.3d 863, 909 N.Y.S.2d 693, 936 N.E.2d 460 [2010] ; Perez v. New York City Hous. Auth., 47 A.D.3d 505, 850 N.Y.S.2d 75 [1st Dept. 2008] ). Because petitioner failed to proffer an acceptable excuse for the default, it is not necessary to determine whether there is any merit to the petition (see Galaxy Gen. Contr. Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790, 945 N.Y.S.2d 298 [1st Dept. 2012] ).
We have considered petitioner's remaining arguments and find them unavailing.