Kalisch v. Maple Trade Finance Corp.

35 A.D.3d 291, 827 N.Y.S.2d 40

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered February 15, 2006, which, to the extent appealed from, denied plaintiff’s motion to vacate her default and dismissed the complaint with prejudice, unanimously modified, on the law and the facts, to the extent of directing that the dismissal of the complaint be without prejudice, and otherwise affirmed, without costs.

In order to vacate her default, plaintiff would be required to demonstrate both a reasonable excuse for her failure to appear at the conference and a meritorious cause of action (Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326 [2006]). Assuming, arguendo, that plaintiff demonstrated a reasonable excuse for her failure to appear at a scheduled conference, she wholly failed to establish a meritorious cause of action. No affidavit of merit was annexed to the motion papers.

Nevertheless, the adjudication was not for neglect to prosecute and was not on the merits (Greenberg v De Hart, 4 NY2d 511, 516-517 [1958]). Therefore, the dismissal does not have res judicata effect (Espinoza, 32 AD3d at 328). Concur—Buckley, P.J., Mazzarelli, Andrias, Sullivan and Sweeny, JJ.