American Barrick Resources Corp. v. Smith

169 A.D.2d 584

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1991
• Status: Published

Opinion

Judgment, Supreme Court, New York County (William J. Davis, J.), entered April 19, 1990, which found in favor of defendants and dismissed the complaint, unanimously affirmed, with costs. The appeal from the order of the same court, entered April 3, 1990, is dismissed as superceded by the appeal from the aforesaid judgment, without costs.

In August 1989, defendants moved for summary judgment by motion returnable September 19, 1989. Plaintiffs failed to submit opposition to the motion, despite several extensions of time granted by defendants, and, in fact, caused the motion to be marked "off calendar” due to failure to properly submit a stipulation of adjournment to the court. Plaintiffs then defaulted on defendants’ application to restore the motion to the calendar and for judgment. After receiving notice that the motion had been granted on default, plaintiffs took no action for an additional two months. Plaintiffs’ only excuse was that a partner in the large firm representing them had been diverted by a series of other pressing professional obligations which, however, on examination, entailed only a small period of time after the initial default. In these circumstances, the Supreme Court properly determined that plaintiffs had failed to demonstrate a valid excuse for the default as required pursuant to CPLR 2005 and 5015 (a) (1). There is plainly a firm basis for the conclusion that plaintiffs have been guilty of a consistent pattern of purposeful neglect, which by itself may preclude vacatur of a default (Hohenberg v 77 W. 55th St. Assocs., 118 AD2d 418, lv dismissed 68 NY2d 753). Concur— Sullivan, J. P., Milonas, Rosenberger, Ross and Smith, JJ.