Diaz v. Perlson

2019 NY Slip Op 194

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 2019
• Docket: 8094N 304367/10
• Status: Published

Opinion

Diaz v Perlson (2019 NY Slip Op 00194)

Diaz v Perlson

2019 NY Slip Op 00194

Decided on January 10, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 10, 2019
Acosta, P.J., Renwick, Manzanet-Daniels, Webber, Kahn, JJ.

8094N 304367/10

[*1] Jose Luis Diaz, Plaintiff-Appellant,

v

Gary Perlson, Defendant-Respondent.

Raiser & Kenniff, P.C., Mineola (Ethan D. Irwin of counsel), for appellant.

Bader & Yakaitis, LLP, New York (Jeffrey W. Bader of counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about June 7, 2017, which denied plaintiff's motion to vacate a prior order dismissing the action for failure to appear at a court conference, unanimously affirmed, without costs.

"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" (Biton v Turco, 88 AD3d 519, 519 [1st Dept 2011]). Even assuming that plaintiff set forth a reasonable excuse for the failure to appear at the conference, the court providently exercised its discretion in denying the motion since plaintiff failed to show a meritorious cause of action (see e.g. Barclay v Etim, 129 AD3d 591 [1st Dept 2015], lv dismissed 28 NY3d 948 [2016]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 10, 2019

CLERK