Biton v. Turco

88 A.D.3d 519, 930 N.Y.2d 876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 2011
• Status: Published

Opinion

A motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) must be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action (see Donnelly v Treeline Cos., 66 AD3d 563 [2009]). The showing of merit necessary to vacate a section 202.27 default is less than what is necessary for opposing a motion for summary judgment (see Goodwin v New York City Hous. Auth., 78 AD3d 550 [2010]).

Here, even assuming plaintiff alleged a reasonable excuse for the failure to appear at the conference based on law office failure, the court did not improvidently exercise its discretion in denying plaintiffs motion to vacate the default on the ground that she failed to show a meritorious cause of action (see e.g. Chiaramonte v Coppola, 81 AD3d 426 [2011]; DeRosario v New York City Health & Hosps. Corp., 22 AD3d 270 [2005]; Fink v Antell, 19 AD3d 215 [2005]; Ortiz v Silver Dollar Tr. Inc., 10 AD3d 585 [2004]). Concur — Catterson, J.E, Richter, ManzanetDaniels and Román, JJ.

Motions seeking to vacate and quash orders denied.