| Frangione v Daniels |
| 2007 NY Slip Op 07659 [44 AD3d 708] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Lisa Di Giacomo Frangione et al., Appellants, v BarbaraDaniels et al., Respondents. |
—[*1] Abamont & Associates (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger,Uniondale, N.Y. [Kathleen D. Foley] of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Molia, J.), dated November 16, 2006, which denied theirmotion, in effect, to vacate their default in appearing for trial, to vacate the dismissal of theaction pursuant to 22 NYCRR 202.27 (b), and to restore the action to the trial calendar.
Ordered that the order is affirmed, with costs.
In this case, the plaintiffs' action was dismissed when neither the plaintiffs nor anyone ontheir behalf appeared on the date set for trial. Accordingly, in order to vacate the default andrestore the action to the trial calendar, the plaintiffs were required to demonstrate both areasonable excuse for the default and a meritorious cause of action (see 22 NYCRR202.27; Jones v New York City Hous.Auth., 13 AD3d 489 [2004]; Kandel v Hoffman, 309 AD2d 904, 905 [2003]).However, while the plaintiff Lisa Di Giacomo Frangione attempted, in her affidavit, to articulatea reasonable excuse for the plaintiffs' failure to appear for trial, there was nothing in her affidavitto establish that the plaintiffs had a meritorious cause of action. Accordingly, the Supreme Courtproperly denied the plaintiffs' motion, in effect, to vacate the default in appearing for trial, tovacate the dismissal of the action pursuant to 22 NYCRR 202.27 (b), and to restore the action tothe trial calendar (see CPLR 5015 [a]; Psomatithis v Transoceanic Cable Ship Co., Inc., 39 AD3d 837[2007]). Santucci, J.P., Goldstein, Dillon and Angiolillo, JJ., concur.