Yong U Lee v Huan Wen Zhang

2015 NY Slip Op 08158 [133 AD3d 651]

November 12, 2015

Appellate Division, Second Department

As corrected through Wednesday, December 30, 2015

[*1]

Yong U Lee, Appellant, v Huan Wen Zhang etal., Respondents.

Gary S. Park, Flushing, N.Y. (Yousef Lee of counsel), for appellant.

Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), forrespondents.

In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Weinstein, J.), entered October 30, 2013,which denied his renewed motion, inter alia, to vacate the dismissal of the action.

Ordered that the order is affirmed, with costs.

On May 27, 2010, the action was dismissed after the plaintiff failed to appear in theTrial Scheduling Part.

To vacate the dismissal of an action pursuant to CPLR 5015 (a) (1), a plaintiff mustdemonstrate both a reasonable excuse for the default and a potentially meritorious causeof action (see Henry vLewis, 118 AD3d 669, 670 [2014]; Schmitt v Jeyalingam, 71 AD3d 757 [2010]; Santiago v Santana, 54 AD3d929, 930 [2008]), and must move within one year after receiving notice of thedismissal (see CPLR 5015 [a] [1]; Bistre v Rongrant Assoc., 109 AD3d 778, 779 [2013]; Matter of Downing v New YorkCity Dept. of Educ., 108 AD3d 624, 626 [2013]; Prospect Park Mgt., LLC vBeatty, 73 AD3d 885, 886 [2010]). Here, the plaintiff's renewed motion wasuntimely, given the extensive delay between the time that the plaintiff received notice ofthe dismissal of the action and the filing of his renewed motion to vacate the dismissal(see Matter of Rockland Bakery,Inc. v B.M. Baking Co., Inc., 83 AD3d 1080, 1082 [2011]; Matter of Putnam County Natl.Bank v JP Morgan Chase Bank N.A., 57 AD3d 677, 678 [2008]; Nahmani vTown of Ramapo, 262 AD2d 291 [1999]). Furthermore, the plaintiff failed toarticulate any basis for the more than 21/2-year delay between the date ofthe prior order denying his original motion to vacate and his renewed motion (see JP Morgan Chase Bank, N.A. vRusso, 121 AD3d 1048, 1049 [2014]). Accordingly, the Supreme Courtprovidently exercised its discretion in denying the plaintiff's renewed motion, inter alia,to vacate the dismissal of the action.

The plaintiff's remaining contentions, raised for the first time on appeal, are notproperly before this Court (seePerla v Daytree Custom Bldrs., Inc., 119 AD3d 758, 760 [2014]). Balkin, J.P.,Chambers, Cohen and Hinds-Radix, JJ., concur.