| 9 Bros. Bldg. Supply Corp. v Buonamicia |
| 2013 NY Slip Op 03647 [106 AD3d 968] |
| May 22, 2013 |
| Appellate Division, Second Department |
| 9 Brothers Building Supply Corp.,Respondent, v Theresa Buonamicia, Defendant, and Diego Cuervo,Appellant. |
—[*1] Long, Tuminello, Besso, Seligman, Werner, Sullivan & Aulivola, LLP, Bay Shore,N.Y. (Michelle Aulivola of counsel), for respondent.
In an action, inter alia, for specific performance of a contract for the sale of realproperty, the defendant Diego Cuervo appeals from an order of the Supreme Court,Suffolk County (Mayer, J.), dated May 6, 2011, which denied his motion to vacate aprior order of the same court dated April 27, 2009, granting the plaintiff's application, ineffect, pursuant to 22 NYCRR 202.27 to strike his answer and for judgment against himupon his default in appearing at a conference, and setting the matter down for an inquest.
Ordered that the order dated May 6, 2011, is affirmed, with costs.
In order to vacate the order striking his answer based upon his default in appearingfor a scheduled conference before the court, the appellant was required to demonstrateboth a reasonable excuse for his failure to appear and a potentially meritorious defense(see Hwang v Tam, 72AD3d 741 [2010]; D & WConstr. v Israel, 54 AD3d 889 [2008]; Gazetten Contr., Inc. v HCO, Inc., 45 AD3d 530 [2007];M.S. Hi-Tech, Inc. vThompson, 23 AD3d 442 [2005]; Travis v Mason, 17 AD3d 449 [2005]; Contractors Cas.& Sur. Co. v 535 Broadhollow Realty, 276 AD2d 737, 738 [2000]; CPLR 5015 [a][1]). "The determination of what constitutes a reasonable excuse for a default lies withinthe sound discretion of the trial court" (Matter of Gambardella v Ortov Light.,278 AD2d 494, 495 [2000]; see Travis v Mason, 17 AD3d at 450).
Here, the appellant failed to establish a reasonable excuse for his failure to appear atthe scheduled conference (seeFranchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 51AD3d 717 [2008]; cf.Orwell Bldg. Corp. v Bessaha, 5 AD3d 573 [2004]).
Accordingly, the Supreme Court properly denied the appellant's motion to vacate theorder dated April 27, 2009. Skelos, J.P., Hall, Lott and Hinds-Radix, JJ., concur.