Conklin v. Metro North Commuter Railroad

Appellate Division of the Supreme Court of New York

Conklin v. Metro North Commuter Railroad

45 A.D.3d 259, 844 N.Y.S.2d 272

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 1, 2007

StatusPublished

This text of 45 A.D.3d 259 (Conklin v. Metro North Commuter Railroad) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Conklin v. Metro North Commuter Railroad, 45 A.D.3d 259, 844 N.Y.S.2d 272 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 2, 2006, which denied plaintiff’s motion to vacate a prior order that had dismissed the complaint, and to restore his action to the calendar, unanimously affirmed, without costs.

Assuming plaintiff never received notice of the dismissal order and could move to vacate and restore more than one year after entry of the dismissal order, he still had to show a meritorious action and a reasonable excuse for his default (see Acevedo v Navarro, 22 AD3d 391 [2005]). Plaintiff s decision to prosecute his other claim, which was ultimately denied, does not excuse his neglect of this action (Bowman v Lacovara, 37 AD3d 287 [2007]). Moreover, even after two opportunities, plaintiff has still failed to establish the existence of a meritorious cause of action (see Ortiz v Silver Dollar Tr. Inc., 10 AD3d 585 [2004]). Concur—Lippman, P.J., Mazzarelli, Friedman, Marlow and Buckley, JJ.

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Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 2, 2006, which denied plaintiff’s motion to vacate a prior order that had dismissed the complaint, and to restore his action to the calendar, unanimously affirmed, without costs.

Assuming plaintiff never received notice of the dismissal order and could move to vacate and restore more than one year after entry of the dismissal order, he still had to show a meritorious action and a reasonable excuse for his default (see Acevedo v Navarro, 22 AD3d 391 [2005]). Plaintiff s decision to prosecute his other claim, which was ultimately denied, does not excuse his neglect of this action (Bowman v Lacovara, 37 AD3d 287 [2007]). Moreover, even after two opportunities, plaintiff has still failed to establish the existence of a meritorious cause of action (see Ortiz v Silver Dollar Tr. Inc., 10 AD3d 585 [2004]). Concur—Lippman, P.J., Mazzarelli, Friedman, Marlow and Buckley, JJ.

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Bluebook (online)

45 A.D.3d 259, 844 N.Y.S.2d 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conklin-v-metro-north-commuter-railroad-nyappdiv-2007.

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