NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
March 10, 2009
DONALD MACPHERSON, PLAINTIFF-APPELLANT,
80 VARICK STREET GROUP, L.P., ET AL., DEFENDANTS-RESPONDENTS.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered November 1, 2007, which denied plaintiff's motion to vacate an order dismissing the action and restore the case to the calendar, unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Saxe, Nardelli, DeGrasse, Freedman, JJ.
Plaintiff proffered a reasonable excuse for his default, i.e., that he never received notice of the preliminary conference, at which indeed neither side appeared (see Grant v Rattoballi, 57 AD3d 272, 273 ). However, he failed to proffer facts showing that he has a meritorious cause of action (see Rugieri v Bannister, 7 NY3d 742 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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