Perez v. New York City Housing Authority

47 A.D.3d 505, 850 N.Y.S.2d 75

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered on or about August 7, 2006, which, in an action for personal injuries, denied plaintiffs motion to vacate a prior order dismissing the action, unanimously affirmed, without costs.

The court’s computerized records, which were not included in the record but of which we take judicial notice (cf. Crawford v Liz Claiborne, Inc., 45 AD3d 284 n 1 [2007]; Joseph v Morris Apts. Corp., 236 AD2d 297 [1997]), show that in accordance with the warning in the court’s scheduling notice dated November 23, 2004, admittedly received by plaintiffs attorney, the action was dismissed on March 2, 2005 pursuant to 22 NYCRR 202.27 when plaintiff failed to appear for a pre-note of issue conference. That an order of dismissal was never signed by the court and entered does not render the dismissal ineffective or relieve plaintiff of the burden of showing a reasonable excuse for her failure to appear at the conference and a meritorious cause of action, as required in a motion to vacate the dismissal of an action pursuant to 22 NYCRR 202.27 (American Cont. Props., Inc. v Lynn, 32 AD3d 700, 700 [2006], Iv dismissed 7 NY3d 921 [2006]). The conclusory and perfunctory claim of law office failure asserted by plaintiffs attorney—due to the solo practitioner’s overbooking of cases and inability to keep track of his appearances—does not constitute a reasonable excuse (see Achampong v Weigelt, 240 AD2d 247, 248 [1997]), particularly in view of plaintiffs pattern of dilatory behavior in prosecuting the matter (see Walker v City of New York, 46 AD 3d 278 [2007]; Metral v Bonifacio, 309 AD2d 724 [2003]). In the latter regard, it appears that an extant November 1997 preliminary conference order directed the filing of a note of issue and certificate of readiness by November 1998, and that there was no significant activity in the case for some four years prior to the March 2005 conference. We would add, as did the motion court, that plaintiff also fails to show a meritorious cause of action. We have considered plaintiffs other arguments and find them unavailing. Concur—Lippman, RJ., Saxe, Nardelli, Williams and Moskowitz, JJ.