Mitrany v. American Title Insurance

238 A.D.2d 179, 655 N.Y.S.2d 957, 1997 N.Y. App. Div. LEXIS 3721

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1997
• Status: Published

Opinion

—Orders, Supreme Court, New York County (Edward Lehner, J.), entered November 22, 1995, which denied plaintiff’s motion to vacate an order dismissing the action upon plaintiff’s failure to appear at a calendar call, and February 21, 1996, which, insofar as appeal-able, denied plaintiff’s motion to renew the prior motion, unanimously affirmed, without costs.

Judicial preference for disposing of cases on the merits does not relieve a party seeking to vacate a default of the two-pronged burden of showing merit to its position and a reasonable excuse for the default. The motion court properly rejected plaintiff’s vague excuses for his failure to appear at a calendar call, which came after a long period of inaction in this matter, repeated dilatory tactics and a history of noncompliance with court orders, all to defendant’s resultant prejudice. Concur— Murphy, P. J., Williams, Tom and Mazzarelli, JJ.