| Siculan v Koukos |
| 2010 NY Slip Op 04985 [74 AD3d 946] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Rita Siculan, Appellant, v Ifigenia Koukos et al.,Respondents and Hopeful Enterprises, Inc., Defendant/Third-Party Plaintiff/Second Third-PartyPlaintiff-Respondent. J.S.S. Plumbing, Heating, Sprinkler Contractors, LLC, et al., Third-PartyDefendants-Respondents; Sal Schettina, Third-Party Defendant/Third Third-PartyPlaintiff-Respondent; J.R.M. Construction Corp., Second Third-Party Defendant/ThirdThird-Party Defendant-Respondent; Ridge Prepatory School, Third Third-PartyDefendant-Respondent. |
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In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited byher brief, from so much of an order of the Supreme Court, Kings County (Hurkin-Torres, J.),dated February 27, 2009, as denied her motion, in effect, to vacate the dismissal of the actionpursuant to 22 NYCRR 202.27 and to restore the action to the calendar, and (2) from an order ofthe same court dated September 21, 2009, which denied her motion for leave to renew andreargue her prior motion.
Ordered that the appeal from so much of the order dated September 21, 2009, as [*2]denied that branch of the plaintiff's motion which was for leave toreargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated February 27, 2009, is affirmed insofar as appealed from; and itis further,
Ordered that the order dated September 21, 2009, is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
Contrary to the plaintiff's contention, the action was dismissed pursuant to 22 NYCRR202.27 (b) for counsel's failure to appear at a scheduled conference (see Chechen v Spencer, 68 AD3d801, 801-802 [2009]; Saunders vRiverbay Corp., 17 AD3d 137, 138 [2005]). Indeed, counsel acknowledged as muchbefore the Supreme Court (seeDeRosario v New York City Health & Hosps. Corp., 22 AD3d 270, 270-271 [2005]).Consequently, in order to vacate the dismissal of the action, the plaintiff was required todemonstrate a reasonable excuse for her failure to appear and a potentially meritorious cause ofaction (see e.g. Brooks v Haidt, 30AD3d 365 [2006]). The excuse offered, an unexplained occurrence of law office failure, wasnot a reasonable one (see Chechen v Spencer, 68 AD3d at 802; Matter of Denton v City of MountVernon, 30 AD3d 600, 601 [2006]; Montalvo v Nel Taxi Corp., 114 AD2d 494,495 [1985]). Moreover, the affidavit of merit, which was improperly submitted for the first timein reply, was insufficient to demonstrate the existence of a potentially meritorious cause ofaction (see Bustamante v Green DoorRealty Corp., 69 AD3d 521 [2010]; Brownfield v Ferris, 49 AD3d 790, 791-792 [2008]). Accordingly,the Supreme Court properly denied the plaintiff's motion, in effect, to vacate the dismissal of theaction pursuant to 22 NYCRR 202.27 and to restore the action to the calendar (seeBrownfield v Ferris, 49 AD3d at 792).
The Supreme Court also properly denied that branch of the plaintiff's motion which was forleave to renew her prior motion. The plaintiff failed to provide a reasonable justification for thefailure to present the new facts in support of her prior motion (see CPLR 2221 [e] [3];Chechen v Spencer, 68 AD3d at 802) and, in any event, "[t]he new evidence submittedby the plaintiff in support of that branch of the motion would not have changed the priordetermination" (Cohen v Wallace &Minchenberg, 39 AD3d 690, 690 [2007]; see CPLR 2221 [e] [2]; Khan v Nelson, 68 AD3d 1062,1063 [2009]). Dillon, J.P., Miller, Chambers and Lott, JJ., concur.