Selechnik v. Law Off. of Howard R. Birnbach

120 A.D.3d 1220, 991 N.Y.S.2d 894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 10, 2014
• Docket: 2012-11121
• Status: Published

Opinion

In an action, inter alia, to recover damages for fraud and negligent hiring and retention, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.), entered September 26, 2012, as denied their motion to vacate an order of the same court dated January 12, 2012, entered upon their default in appearing at pretrial conferences, directing the dismissal of the complaint insofar as asserted against the defendant Law Office of Howard R. Birnbach.

Ordered that the order is affirmed insofar as appealed from, with costs.

To vacate their default in appearing at a pretrial conference, the plaintiffs were required to demonstrate both a reasonable excuse for their default and a potentially meritorious cause of action (see CFLR 5015 [a] [1]; Dobbins v Vartabedian, 23 AD3d 431, 431 [2005]). Since the plaintiffs failed to proffer a reasonable excuse for their failure to appear at numerous court-ordered conferences, it is unnecessary to consider whether they demonstrated a potentially meritorious cause of action (see Ogazi v Ogazi, 46 AD3d 646, 646 [2007]). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of their motion which was to vacate an order of the same court dated January 12, 2012, entered upon their default, directing the dismissal the complaint insofar as asserted against the defendant Law Office of Howard R. Birnbach (see CFLR 5015 [a] [1]; Dobbins v Vartabedian, 23 AD3d at 431).

Mastro, J.E, Dillon, Miller and Maltese, JJ., concur.