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Brown v. Vanchieri

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


July 21, 2009

ELI BROWN, APPELLANT,
v.
JACK VANCHIERI, ET AL., RESPONDENTS.

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated July 2, 2008, which denied his motion, in effect, to vacate the dismissal of the action and to restore the action to the trial calendar.

2009 NY Slip Op 05942

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.

REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH COVELLO, RANDALL T. ENG and L. PRISCILLA HALL, JJ.

(Index No. 22665/98)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Where, as here, an action on the trial calendar is dismissed pursuant to 22 NYCRR 202.27(b), the dismissal of the action may be vacated, and the action restored to the trial calendar, only if the plaintiff can demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015[a][1]; Santiago v Santana, 54 AD3d 929, 930; Cazeau v Paul, 2 AD3d 477). Under all of the circumstances, including the plaintiff's failure to provide a reasonable excuse for his lengthy delay in moving for that relief, the Supreme Court providently exercised its discretion in denying the plaintiff's motion (see Seven Acre Wood St. Assoc. v Wood, 286 AD2d 432; Piacentini v Mineola Union Free School Dist., 267 AD2d 290, 291; cf. Matter of Putnam County Natl. Bank v JP Morgan Chase Bank, N.A., 57 AD3d 677, 678; Malik v Noe, 54 AD3d 733, 734).

RIVERA, J.P., DILLON, COVELLO, ENG and HALL, JJ., concur.

20090721

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