Pichardo-Garcia v. Josephine's Spa Corp.

91 A.D.3d 413, 936 N.Y.2d 27

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 2012
• Status: Published

Opinion

In the absence of a determination by the motion court, pursuant to CPLR 5015 (a) (1), of the reasonableness of plaintiffs proffered excuse for her failure to appear at a scheduled compliance conference, we reject the claim of law office failure as “conclusory and perfunctory” (see Perez v New York City Hous. Auth., 47 AD3d 505, 505 [2008]). Counsel explained that the failure to appear was due to a conflict between scheduled appearances in this action and in an unrelated action. However, he did not state that he took any steps to resolve or alleviate the conflict or that he was unaware of the conflict. Counsel’s “overbooking of cases and inability to keep track of his appearances” does not constitute a reasonable excuse for the failure to appear (id.; see also Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454, 455 [2010], lv dismissed 15 NY3d 863 [2010]). Moreover, plaintiff made no attempt to vacate the default until almost a year after being served with the notice of its entry (see Youni, 70 AD3d at 455). Concur — Gonzalez, P.J., Andrias, DeGrasse, Richter and Abdus-Salaam, JJ.