120 AD3d 1220
N.Y. App. Div. 2nd
2014

Jacob Selechnik et al., Appellants, v Law Office of Howard R. Birnbach, Respondent, et al., Defendant.

2014 NY Slip Op 06072

Appellate Division, Second Department

September 10, 2014

120 AD3d 1220

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 29, 2014

Alan B. Brill, P.C., Suffern, N.Y. (Sheila S. Rosenrauch of counsel), for appellants.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Christopher Russo and Jonathan Harwood of counsel), for respondent.

In an action, inter alia, to recover damages for fraud and negligent hiring and retention, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.), entered September 26, 2012, as denied their motion to vacate an order of the same court dated January 12, 2012, entered upon their default in appearing at pretrial conferences, directing the dismissal of the complaint insofar as asserted against the defendant Law Office of Howard R. Birnbach.

Ordered that the order is affirmed insofar as appealed from, with costs.

To vacate their default in appearing at a pretrial conference, the plaintiffs were required to demonstrate both a reasonable excuse for their default and a potentially meritorious cause of action (see CPLR 5015 [a] [1]; Dobbins v Vartabedian, 23 AD3d 431, 431 [2005]). Since the plaintiffs failed to proffer a reasonable excuse for their failure to appear at numerous court-ordered conferences, it is unnecessary to consider whether they demonstrated a potentially meritorious cause of action (see Ogazi v Ogazi, 46 AD3d 646, 646 [2007]). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of their motion which was to vacate an order of the same court dated January 12, 2012, entered upon their default, directing the dismissal the complaint insofar as asserted against the defendant Law Office of Howard R. Birnbach (see CPLR 5015 [a] [1]; Dobbins v Vartabedian, 23 AD3d at 431). Mastro, J.P., Dillon, Miller and Maltese, JJ., concur.