Opinion
2012-02-14
NEW YORK NIGHTLIFE, LLC, Plaintiff–Appellant, v. WAGNER DAVIS P.C., Defendant,Brian Owens, Defendant–Respondent.
Law Offices of Edward A. Mermelstein & Associates, New York (Edward A. Mermelstein of counsel), for appellant. Law Offices of Mangan Ginsberg LLP, New York (Michael P. Mangan of counsel), for respondent.
Law Offices of Edward A. Mermelstein & Associates, New York (Edward A. Mermelstein of counsel), for appellant. Law Offices of Mangan Ginsberg LLP, New York (Michael P. Mangan of counsel), for respondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered January 26, 2010, which denied plaintiff's motion to vacate the dismissal of the action for failure to proceed to trial, unanimously affirmed, without costs.
In this contract action, plaintiff's principal, a Russian citizen with a residence in New York, who had been subpoenaed by defendants, failed to appear for trial and the court dismissed the action ( see CPLR 3215[a]; 22 NYCRR 202.27). Even assuming that a reasonable excuse for the principal's failure to appear was provided, based on his unsubstantiated need to return to Russia to secure an extension of his visa, plaintiff failed to show that it has a meritorious cause of action ( Biton v. Turco, 88 A.D.3d 519, 930 N.Y.S.2d 876 [2011]; Carroll v. Nostra Realty Corp., 54 A.D.3d 623, 864 N.Y.S.2d 10 [2008], lv. dismissed 12 N.Y.3d 792, 879 N.Y.S.2d 38, 906 N.E.2d 1072 [2009] ). Thus, the court providently exercised its discretion in denying the motion to vacate the default.