Opinion
No. 1287 Index No. 151419/13 154283/14 158943/15 160305/15 Case No. 2023-02388
12-21-2023
Andrew Liakos, Plaintiff, v. Wilbert A. Spencer et al., Defendants. [And a Third-Party Action] Andrew Liakos, Plaintiff-Respondent, v. Robert Franklin, Defendant Mary Franklin, Defendant-Appellant. [And Other Actions]
Sweetbaum & Sweetbaum, Lake Success (Joel A. Sweetbaum of counsel), for appellant. DeColator, Cohen & DiPrisco LLP, Garden City (Carolyn M. Canzoneri of counsel), for respondent.
Sweetbaum & Sweetbaum, Lake Success (Joel A. Sweetbaum of counsel), for appellant.
DeColator, Cohen & DiPrisco LLP, Garden City (Carolyn M. Canzoneri of counsel), for respondent.
Before: Manzanet-Daniels, J.P., González, Scarpulla, Mendez, Higgitt, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered April 5, 2023, which denied defendant Mary Franklin's motion to vacate the court's January 10, 2023 order striking her answer for failure to comply with court orders and appear for three mandatory court conferences, unanimously affirmed, with costs.
The court had no jurisdiction over Robert Franklin based on his death two decades before the action was instituted and prior to the substitution of his estate (CPLR 1015[a]); however, his death did not affect the court's jurisdiction over Mary, his wife . The stay of the action that was granted by the court based on Robert's death and the failure to substitute his estate (see Thomas v Rubin, 197 A.D.3d 1061 [1st Dept 2021]) did not apply to Mary under CPLR 1015(b)and by its express terms .
The court providently exercised its discretion in determining that Mary failed to provide a reasonable excuse for failing to appear at three mandatory court conferences and provide discovery. While law office failure is an adequate excuse in certain situations (see Mediavilla v Gurman, 272 A.D.2d 146, 148 [1st Dept 2000]), here, there was a pattern by Mary's counsel of failing to properly calendar the case and comply with court orders (see Gonzalez v Praise the Lord Dental, 79 A.D.3d 550, 550 [1st Dept 2010]), and the excuse of law office failure was vague, conclusory, and unsubstantiated (see Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790 [1st Dept 2012]).
Since Mary failed to offer a reasonable excuse for her default, it is unnecessary to address whether she had a meritorious defense (see Gonzalez v Praise the Lord Dental, 79 A.D.3d 550). However, her affidavit of merit was inadequate since it did not specify the location of her fence, the location of the accident, or substantiate that her fence was not in disrepair.