Bitterman v. Hurewitz

Feb 14, 2005
Versions:15 A.D.3d 434
789 N.Y.S.2d 450
2005 N.Y. App. Div. LEXIS 1647

STEPHAN A. BITTERMAN et al., Appellants, v JEFFREY HUREWITZ, Respondent. [789 NYS2d 450]—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Bergerman, J.), dated March 25, 2003, which denied their motion, in effect, to vacate a prior order of the same court dated July 22, 2002, dismissing the complaint upon their failure to appear at a compliance conference.

Ordered that the order is affirmed, with costs.

When the plaintiffs failed to appear for a compliance conference, the court was authorized to dismiss the action pursuant to 22 NYCRR 202.27 (see Lopez v Imperial Delivery Serv., 282 AD2d 190, 194-195 [2001]). In moving, in effect, to vacate the order dismissing the complaint, the plaintiffs were required to demonstrate a reasonable excuse for their default in appearing at the compliance conference and a meritorious claim (see CPLR 5015 [a] [1]; Kang v LaGuardia Hosp., 12 AD3d 347 [2004]; Santiago v New York City Health & Hosps. Corp., 10 AD3d 393 [2004]; Mount Sinai Hosp. of Queens v Hertz Corp., 3 AD3d 523, 524 [2004]; Precision Envelope Co. v Marcus & Co., 306 AD2d 263 [2003]; Spells v A&P Supermarkets, 253 AD2d 422 [1998]; Roussodimou v Zafiriadis, 238 AD2d 568, 568-569 [1997]). The plaintiffs failed to make that showing. Accordingly, the court providently exercised its discretion in denying the plaintiffs’ motion. Adams, J.P., Cozier, Ritter and Skelos, JJ., concur.