| Grippi v Balkan Sewer & Water Main Serv. |
| 2009 NY Slip Op 07589 [66 AD3d 837] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Andrea Grippi, Appellant, v Balkan Sewer & Water MainService et al., Respondents, and Consolidated Edison, Defendants andThird-Party-Plaintiffs-Respondents. MEC Construction Corp., Third-PartyDefendant-Respondent, et al., Third-Party Defendant. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia K.Raicus of counsel), for defendant-respondent Balkan Sewer & Water Main Service andthird-party plaintiff-respondent Joseph L. Balkan, Inc. Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for second third-partydefendant-respondent MEC Construction Corp.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Flug, J.), dated July 30, 2008, which denied his motion tovacate a prior order of the same court dated October 25, 2007, granting the separate unopposedmotions of the defendants Balkan Sewer & Water Main Service and Consolidated Edison todismiss the complaint pursuant to CPLR 3126 insofar as asserted against them for failure toprovide disclosure, and denied his separate motion to vacate a prior order of the same court(Schulman, J.), dated October 24, 2007, in effect, directing dismissal of the complaint insofar asasserted against the defendant City of New York upon his default in appearing for a pretrialconference.
Ordered that the order dated July 30, 2008 is affirmed, with one bill of costs payable by theplaintiff to the defendant-respondent Balkan Sewer & Water Main Service, the third-partyplaintiff-respondent, and the second third-party defendant-respondent appearing separately andfiling separate briefs.
In order to prevail on a motion to vacate a default, a plaintiff is required to demonstrate botha reasonable excuse for the default and the existence of a meritorious cause of action (seeCPLR 5015 [a] [1]; Catanzaro vWallenstein, 7 AD3d 479 [2004]; Vaval v Malone, 2 AD3d 839 [2003]). Similarly, an actiondismissed pursuant to 22 NYCRR 202.27 (b) may be restored if the plaintiff demonstrates both areasonable excuse for the default and a meritorious cause of action (see Psomatithis v Transoceanic Cable ShipCo., Inc., 39 AD3d 837 [2007]; Kandel v Hoffman, 309 AD2d 904, 905[2003]). The plaintiff herein failed to provide a reasonable excuse for his failure to oppose themotions to dismiss and for his failure to appear on the scheduled date for the pretrial conference.Moreover, the plaintiff failed to demonstrate that there was any merit to his claim against thedefendants. In view of the plaintiff's past pattern of "willful default and neglect" in this case, itwas not an improvident exercise of discretion to deny the plaintiff's motions to vacate hisdefaults (Gannon v Johnson Scale Co., 189 AD2d 1052 [1993]; see Kolajo v City ofNew York, 248 AD2d 512 [1998]; Vierya v Briggs & Stratton Corp., 166 AD2d645, 645-646 [1990]; Chery v Anthony, 156 AD2d 414, 417 [1989]). Rivera, J.P., Miller,Balkin, Leventhal and Hall, JJ., concur.