| Pichardo-Garcia v Josephine's Spa Corp. |
| 2012 NY Slip Op 00004 [91 AD3d 413] |
| Jnury 3, 2012 |
| Appellate Division, First Department |
| Rosa Victoria Pichardo-Garcia, Respondent, v Josephine'sSpa Corp., Appellant. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Michael H. Zhu of counsel), forrespondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered on or aboutSeptember 14, 2010, which, to the extent appealed from as limited by the briefs, grantedplaintiff's motion to vacate an order of dismissal, and restored the action to the court calendar,unanimously reversed, on the law and the facts, without costs, and the motion denied. The Clerkis directed to enter judgment in defendant's favor dismissing the complaint.
In the absence of a determination by the motion court, pursuant to CPLR 5015 (a) (1), of thereasonableness of plaintiff's proffered excuse for her failure to appear at a scheduled complianceconference, we reject the claim of law office failure as "conclusory and perfunctory" (see Perez v New York City Hous.Auth., 47 AD3d 505, 505 [2008]). Counsel explained that the failure to appear was dueto a conflict between scheduled appearances in this action and in an unrelated action. However,he did not state that he took any steps to resolve or alleviate the conflict or that he was unawareof the conflict. Counsel's "overbooking of cases and inability to keep track of his appearances"does not constitute a reasonable excuse for the failure to appear (id.; see also Youni Gems Corp. v BasscoCreations Inc., 70 AD3d 454, 455 [2010], lv dismissed 15 NY3d 863 [2010]).Moreover, plaintiff made no attempt to vacate the default until almost a year after being servedwith the notice of its entry (see Youni, 70 AD3d at 455). Concur—Gonzalez, P.J.,Andrias, DeGrasse, Richter and Abdus-Salaam, JJ.