| Brownfield v Ferris |
| 2008 NY Slip Op 02778 [49 AD3d 790] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Shy-Makka Brownfield et al., Appellants, v William E.Ferris, Respondent. |
—[*1] Nesci Keane Piekarski Keogh & Corrigan, White Plains, N.Y. (Jason M. Bernheimer ofcounsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Dutchess County (Brands, J.), dated July 13, 2007, which denied theirmotion to vacate an order of the same court dated March 26, 2007, granting the defendant's oralapplication to dismiss the complaint upon, inter alia, their failure to appear at a complianceconference, and to restore the action to the calendar.
Ordered that the order is affirmed, with costs.
By order dated March 26, 2007, the Supreme Court granted the defendant's oral applicationto dismiss the complaint pursuant to 22 NYCRR 202.27 (b) after the plaintiffs failed to appear ata scheduled compliance conference (seeZeltser v Sacerdote, 24 AD3d 541, 542 [2005]). To vacate the order granting thedefendant's application to dismiss the complaint, the plaintiffs were required to demonstrate areasonable excuse for their failure to appear at the conference and the existence of a meritoriouscause of action (see CPLR 5015 [a] [1]; Watson v New York City Tr. Auth., 38 AD3d 532, 533 [2007]; Zeltser v Sacerdote, 24 AD3d 541,542 [2005]; Echevarria v Waters, 8AD3d 330, 331 [2004]). The conclusory statement by the plaintiffs' attorney that "one of theattorneys from the firm was away on vacation" was insufficient to excuse the default (see Fekete v Camp Skwere, 16 AD3d544, 545 [2005]; Shmarkatyuk v Chouchereba, 291 AD2d 487 [2002]; Fuller vTae Kwon, 259 AD2d 662 [1999]).[*2]
Furthermore, a pattern of willful default and neglectshould not be excused (see Bowman vKusnick, 35 AD3d 643, 644 [2006]; Wynne v Wagner, 262 AD2d 556 [1999]).The plaintiffs repeatedly failed to adequately comply with the court's discovery order until thedefendant moved to dismiss the complaint. Thereafter, the plaintiffs' attorney failed to appear forthree scheduled compliance conferences. The plaintiffs failed to explain this pattern of willfulneglect (see Bowman v Kusnick, 35 AD3d at 644; Wechsler v First Unum Life Ins.Co., 295 AD2d 340, 341-342 [2002]; Wynne v Wagner, 262 AD2d 556 [1999]).
Moreover, the plaintiffs failed to demonstrate the existence of a meritorious cause of action.The affidavit of merit submitted in support of the plaintiffs' motion to vacate was devoid of anyevidentiary facts or detail regarding the defendant's alleged acts of negligence (see Smith vCity of New York, 237 AD2d 344, 345 [1997]; Reilly-Whiteman, Inc. v Cherry HillTextiles, 191 AD2d 486, 487 [1993]; Lener v Club Med, 168 AD2d 433, 435[1990]), and the complaint, which also contained conclusory assertions, was verified by theplaintiffs' attorney and not by an individual with personal knowledge (see McKenna vSolomon, 255 AD2d 496, 496-497 [1998]; Terranova v Gallagher Truck Ctr., 121AD2d 621, 621-622 [1986]; Oversby v Linde Div. of Union Carbide Corp., 121 AD2d373, 373-374 [1986]).
Accordingly, the plaintiffs' motion to vacate the order dated March 26, 2007 was properlydenied. Rivera, J.P., Lifson, Miller, Carni and Eng, JJ., concur.