Kellert v. Mail Boxes, Etc. USA, Inc.

Appellate Division of the Supreme Court of New York

Kellert v. Mail Boxes, Etc. USA, Inc.

248 A.D.2d 127, 669 N.Y.S.2d 557, 1998 N.Y. App. Div. LEXIS 1898

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

DecidedMarch 3, 1998

StatusPublished

Cited by6 cases

This text of 248 A.D.2d 127 (Kellert v. Mail Boxes, Etc. USA, Inc.) 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.

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Kellert v. Mail Boxes, Etc. USA, Inc., 248 A.D.2d 127, 669 N.Y.S.2d 557, 1998 N.Y. App. Div. LEXIS 1898 (N.Y. Ct. App. 1998).

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Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered January 17, 1996, which denied plaintiffs’ motion to vacate the dismissal of this action based on their failure to appear at a conference, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered February 7, 1997, which denied plaintiffs’ motion to reargue the prior order, unanimously dismissed, without costs, as taken from a nonappealable order.

The court properly exercised its discretion in dismissing this action on default when both parties failed to appear at a scheduled status conference in January 1993 (see, Uniform Rules for Trial Cts [22 NYCRR] § 202.27 [c]), and properly denied plaintiffs’ March 1995 motion to vacate their default. Even were we to accept plaintiffs’ contention that the standard for vacatur of a dismissal pursuant to CPLR 3404 should not be applied in this case, and apply instead the standard applicable to a vacatur sought under CPLR 5015 (a), we would conclude that the motion was properly denied since plaintiffs failed to make an adequate showing of merit (see, Lake Claire Homeowners Assn. v Rosenberg, 245 AD2d 427; see also, Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831) and that they had a reasonable excuse for failing to appear, especially considering their egregious non-compliance with a preliminary conference order directing them to file a note of issue by March 1991.

The order denying reargument is nonappealable. We have considered plaintiffs’ other contentions and find them to be without merit. Concur — Milonas, J. P., Nardelli, Williams and Mazzarelli, JJ.

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—Order, Supreme Court, New York County (Ira Gammerman, J.), entered January 17, 1996, which denied plaintiffs’ motion to vacate the dismissal of this action based on their failure to appear at a conference, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered February 7, 1997, which denied plaintiffs’ motion to reargue the prior order, unanimously dismissed, without costs, as taken from a nonappealable order.

The court properly exercised its discretion in dismissing this action on default when both parties failed to appear at a scheduled status conference in January 1993 (see, Uniform Rules for Trial Cts [22 NYCRR] § 202.27 [c]), and properly denied plaintiffs’ March 1995 motion to vacate their default. Even were we to accept plaintiffs’ contention that the standard for vacatur of a dismissal pursuant to CPLR 3404 should not be applied in this case, and apply instead the standard applicable to a vacatur sought under CPLR 5015 (a), we would conclude that the motion was properly denied since plaintiffs failed to make an adequate showing of merit (see, Lake Claire Homeowners Assn. v Rosenberg, 245 AD2d 427; see also, Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831) and that they had a reasonable excuse for failing to appear, especially considering their egregious non-compliance with a preliminary conference order directing them to file a note of issue by March 1991.

The order denying reargument is nonappealable. We have considered plaintiffs’ other contentions and find them to be without merit. Concur — Milonas, J. P., Nardelli, Williams and Mazzarelli, JJ.

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248 A.D.2d 127, 669 N.Y.S.2d 557, 1998 N.Y. App. Div. LEXIS 1898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kellert-v-mail-boxes-etc-usa-inc-nyappdiv-1998.

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