Piacentini v. Mineola Union Free School District

267 A.D.2d 290, 700 N.Y.S.2d 205, 1999 N.Y. App. Div. LEXIS 12877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries-, the plaintiff, Roger Piacentini, appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated December 17, 1998, which denied his motion to vacate an order of the same court, dated October 21, 1997, dismissing the complaint on the ground that he had failed to appear for a preliminary conference.

Ordered that the order is affirmed, with costs.

To vacate the order dismissing the complaint, the appellant had to proffer a reasonable excuse for the default and establish the existence of a meritorious cause of action (see, CPLR 5015 [a] [1]; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831; McNeil v Milstein, 240 AD2d 549; Martinez v Otis El. Co., 213 AD2d 523). The court providently exercised its discretion in denying the appellant’s motion to vacate the default (see, Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, supra; Barasch v Micucci, 49 NY2d 594). The record reveals an overall lack of diligence by the appellant in prosecuting his claim, a pattern of willful default, and neglect. No reasonable excuse was offered either for his failure to appear at the preliminary conference or for the lengthy delay in bringing the motion to vacate his default (see, Yepez v Damico, 239 AD2d 412; Roussodimou v Zafiriadis, 238 AD2d 568; Martinez v Otis El. Co., supra; Gannon v Johnson Scale Co., 189 AD2d 1052). Furthermore, the appellant failed to proffer sufficient evidence of the merit of his underlying claim. Mangano, P. J., Ritter, Joy, McGinity and Smith, JJ., concur.