| 330 Wythe Ave. Assoc., LLC v ABR Constr., Inc. |
| 2008 NY Slip Op 07654 [55 AD3d 599] |
| October 7, 2008 |
| Appellate Division, Second Department |
| 330 Wythe Avenue Associates, LLC, Respondent, v ABRConstruction, Inc., et al., Appellants, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Torre, Lentz, Gamell, Gary & Rittmaster, LLP, Jericho, N.Y. (Lewis Stockman of counsel), forappellant Insurance Company of the State of Pennsylvania. Leonard Lorin, Brooklyn, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of a construction contract, the defendantABR Construction, Inc., appeals, and the defendant Insurance Company of the State of Pennsylvaniaseparately appeals from an order of the Supreme Court, Kings County (Ruditzky, J.), dated April 30,2007, which granted the plaintiff's motion, in effect, to vacate its default in appearing for a scheduledcourt conference, to vacate the dismissal of the action pursuant to 22 NYCRR 202.27 (b), and torestore the action to the trial calendar.
Ordered that the order is affirmed, with costs.
The plaintiff's action was dismissed when neither the plaintiff nor its attorney appeared on the dateset for a compliance conference. Accordingly, in order to vacate the dismissal and to restore the actionto the calendar, the plaintiff was required to demonstrate both a reasonable excuse for the default and ameritorious cause of action (see 22 NYCRR 202.27; Jones v New York City Hous. Auth.,13 AD3d [*2]489 [2004]; Kandel v Hoffman, 309 AD2d904 [2003]). It was within the Supreme Court's discretion to accept the plaintiff's excuse of law officefailure (see CPLR 2005), as it was supported by a "detailed and credible" explanation of thedefault (Henry v Kuveke, 9 AD3d476, 479 [2004]; Gironda v Katzen,19 AD3d 644, 645 [2005]). Moreover, the supplemental affidavit of the plaintiff's president,with supporting evidence, demonstrated the existence of a meritorious cause of action. Rivera, J.P.,Florio, Angiolillo, McCarthy and Chambers, JJ., concur.