| 47 Thames Realty, LLC v Robinson |
| 2011 NY Slip Op 05225 [85 AD3d 851] |
| June 14, 2011 |
| Appellate Division, Second Department |
| 47 Thames Realty, LLC, Appellant, v Ellen Robinson etal., Respondents. |
—[*1] Bierman & Palitz, LLP, New York, N.Y. (Mark H. Bierman and Stephen H. Palitz ofcounsel), for respondents.
In a consolidated action, inter alia, for ejectment and to recover damages for use andoccupancy, the plaintiff appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Bayne, J.), dated September 14, 2009, as denied its second motionpursuant to CPLR 5015 (a) (1) to vacate an order of the same court (Harkavy, J.), dated February6, 2008, dismissing the complaint upon the plaintiff's failure to appear at a complianceconference and to restore the action to the conference calendar, and granted that branch of thedefendants' cross motion pursuant to 22 NYCRR 130-1.1 which was for an award of sanctions tothe extent of awarding $20,325.65 as an attorney's fee and costs, and the defendants cross-appealfrom so much of the order dated September 14, 2009, as denied that branch of their cross motionwhich was pursuant to Real Property Law § 234 for an award of an attorney's fee and costs.
Ordered that the cross appeal is dismissed, as abandoned; and, it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The plaintiff failed to appear at a compliance conference, resulting in an order on defaultdismissing the complaint. The plaintiff moved to vacate its default under CPLR 5015 (a) (1),citing law office failure as its reasonable excuse. However, it did not provide an affidavit ofmerit. The Supreme Court denied the plaintiff's motion, and this Court affirmed (see 47 Thames Realty, LLC vRobinson, 61 AD3d 923 [2009]). Thereafter, the plaintiff again moved to vacate itsdefault pursuant to CPLR 5015 (a) (1), citing a similar excuse of law office failure whileproviding an affidavit of merit. The Supreme Court denied the motion and granted that branch ofthe defendants' cross motion pursuant to 22 NYCRR 130-1.1 which was for an award of anattorney's fee and costs based on the plaintiff's frivolous conduct in bringing a second motion tovacate its default on the same ground.[*2]
Contrary to the plaintiff's contention, it was precludedfrom making a motion to vacate its default on the same ground as its prior motion (see New York State Higher Educ. Servs.Corp. v Adeniyi, 72 AD3d 1387 [2010]; Robert Marini Bldr. v Rao, 263 AD2d846, 848 [1999]; Peck v Ernst Bros., 86 AD2d 692 [1982]; Bianco v Dougherty,54 AD2d 681 [1976]; Glendora vMastrorilli, 14 Misc 3d 87, 88 [2006]). The plaintiff's contention that the Supreme Courtshould have treated its motion as one for leave to renew is belied by the plaintiff's own replypapers that explicitly stated that its motion was not one for leave to renew.
The Supreme Court providently exercised its discretion in awarding an attorney's fee andcosts for the plaintiff's frivolous conduct in bringing a second motion to vacate after theplaintiff's first motion had been denied, the order denying the motion was affirmed by this Court,and the plaintiff explicitly stated its second motion was not one for leave to renew or reargue (see Mascia v Maresco, 39 AD3d504, 505 [2007]). The amount awarded as an attorney's fee and costs was reasonable(see 22 NYCRR 130-1.1). Mastro, J.P., Chambers, Roman and Cohen, JJ., concur.