Mazzio v. Jennings

May 27, 2015
2014-05761
Versions:128 A.D.3d 1032
8 N.Y.S.3d 596
2015 NY Slip Op 04459

In an action for the return of a down payment given pursuant to a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated April 22, 2014, which denied her motion to vacate the dismissal of the action and to restore the action to active status.

Ordered that the order is affirmed, with costs.

The action was dismissed on October 1, 2009, when neither the plaintiff nor her counsel appeared at a court conference (see 22 NYCRR 202.27 [b]). To be relieved of the default in appearing, the plaintiff was required to demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see CPLR 5015 [a] [1]; Murray v New York City Health & Hosps. Corp., 52 AD3d 792, 793 [2008]; Brownfield v Ferris, 49 AD3d 790 [2008]; Zeltser v Sacerdote, 24 AD3d 541, 542 [2005]). Under all of the circumstances, including the plaintiffs failure to provide a reasonable excuse for her lengthy delay in moving to vacate the dismissal of the action and to restore the action to active status, the Supreme Court providently exercised its discretion in denying the plaintiffs motion (see Brown v Vanchieri, 64 AD3d 678 [2009]; Seven Acre Wood St. Assoc. v Wood, 286 AD2d 432 [2001]; Piacentini v Mineola Union Free School Dist., 267 AD2d 290, 291 [1999]; Polans v Swedish Crown Casual Furniture Corp., 69 AD2d 833 [1979]). Chambers, J.P., Dickerson, LaSalle and Barros, JJ., concur.