Lake Claire Homeowners Ass'n v. Rosenberg

245 A.D.2d 427, 666 N.Y.S.2d 476, 1997 N.Y. App. Div. LEXIS 13062

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1997
• Status: Published

Opinion

—In an action, inter alia, for a judgment declaring the rights and obligations of the parties regarding the maintenance of a lake and a dam owned by the defendants, (1) the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Owen, J.), dated November 15, 1996, as denied their motion (a) to vacate their default in appearing at a trial readiness conference, and (b) for summary judgment on their counterclaim, and (2) the plaintiffs cross-appeal from so much of the same order as denied their cross motion for summary judgment dismissing the counterclaim.

Ordered that the order is affirmed, with costs to the plaintiffs.

The defendants’ counterclaim alleging conspiracy by the plaintiffs was dismissed on default when they failed to appear at a scheduled trial readiness conference (see, 22 NYCRR 202.27 [b]). The court properly denied the defendants’ motion, inter alia, to vacate their default absent an adequate showing that their claim has legal merit (see, CPLR 5015 [a] [1]; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831; Barasch v Micucci, 49 NY2d 594; Martinez v Otis El. Co., 213 AD2d 523). There is no substantive tort of conspiracy in New York (see, Alexander & Alexander v Fritzen, 68 NY2d 968; Burrell v International Assn. of Firefighters, 216 AD2d 346; Vogt v Witmeyer, 212 AD2d 1013, affd 87 NY2d 998; Falle v Metalios, 132 AD2d 518, 520).

We note that the plaintiffs’ motion for summary judgment dismissing the counterclaim was academic as the defendants’ counterclaim had already been dismissed on default.

We find no basis for awarding sanctions. Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.