| 47 Thames Realty, LLC v Robinson |
| 2009 NY Slip Op 03476 [61 AD3d 923] |
| April 28, 2009 |
| Appellate Division, Second Department |
| 47 Thames Realty, LLC, Appellant, v Ellen Robinson etal., Respondents. |
—[*1] Beranbaum Menken Ben-Asher & Bierman LLP, New York, N.Y. (Mark H. Bierman ofcounsel), for respondents.
In a consolidated action, inter alia, for ejectment and to recover damages for use andoccupancy, the plaintiff appeals from so much of an order of the Supreme Court, Kings County(Bayne, J.), dated June 20, 2008, as denied its motion pursuant to CPLR 5015 (a) to vacate anorder of the same court (Harkavy, J.), dated February 6, 2008, which dismissed the complaintupon its failure to appear at a compliance conference, and to restore the action to the conferencecalendar.
Ordered that the order is affirmed insofar as appealed from, with costs.
The complaint in this action was dismissed when the plaintiff failed to appear for acompliance conference on February 6, 2008. To be relieved of the default in appearing, theplaintiff was required to demonstrate both a reasonable excuse for the default and a meritoriouscause of action (see CPLR 5015 [a] [1]; Murray v New York City Health & Hosps. Corp., 52 AD3d 792[2008]; Brownfield v Ferris, 49AD3d 790 [2008]; Zeltser vSacerdote, 24 AD3d 541 [2005]; Solomon v Ramlall, 18 AD3d 461 [2005]). In this case, the vagueand unsubstantiated allegation of the plaintiff's counsel that he was "unaware" of the complianceconference because he was a "busy attorney" did not amount to a reasonable excuse (see St. Luke's Roosevelt Hosp. v BlueRidge Ins. Co., 21 AD3d 946 [2005]; Solomon v Ramlall, 18 AD3d 461 [2005]; Fennell vMason, 204 AD2d 599 [1994]). A court may, in its discretion, accept a claim of law officefailure as satisfying the reasonable excuse requirement (see CPLR 2005; Putney vPearlman, 203 AD2d 333 [1994]; Vierya v Briggs & Stratton Corp., 166 AD2d 645[1990]). In this case, the Supreme Court did not improvidently exercise its discretion in rejectingcounsel's proferred excuse [*2]that the associate who scheduledthe compliance conference had left his firm and had not told him about the complianceconference. This excuse was asserted for the first time in the plaintiff's reply papers (see Murray v New York City Health &Hosps. Corp., 52 AD3d 792 [2008]; Parkin v Ederer, 27 AD3d 633 [2006]; Juseinoski v Board of Educ. of City ofN.Y., 15 AD3d 353 [2005]). Furthermore, the plaintiff failed to submit an affidavit ofmerit from someone with personal knowledge in support of its motion (see Mosberg vElahi, 80 NY2d 941 [1992]; Salch v Paratore, 60 NY2d 851 [1983]; Hassell v New York Univ. Med. Ctr.,48 AD3d 632 [2008]; Yushavayev v Kopelman, 307 AD2d 996 [2003]; Burke vKlein, 269 AD2d 348 [2000]). Prudenti, P.J., Santucci, Florio and Belen, JJ., concur.