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Wild v. Target Corp.

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


June 1, 2010

WILLIAM WILD, ET AL., APPELLANTS,
v.
TARGET CORPORATION, RESPONDENT.

In an action to recover damages for injury to property and for injunctive relief, the plaintiffs appeal from an order of the Supreme Court, Orange County (Owen, J.), dated August 3, 2009, which denied their motion, in effect, to vacate the dismissal of the action pursuant to 22 NYCRR 202.27(b) and to restore the action to the pre-note of issue calendar.

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.

PETER B. SKELOS, J.P., HOWARD MILLER, RANDALL T. ENG, L. PRISCILLA HALL and LEONARD B. AUSTIN, JJ.

(Index No. 1426/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The action was dismissed when the plaintiffs failed to appear at a duly-scheduled status conference. To vacate the dismissal and to restore the action to the pre-note of issue calendar, the plaintiffs were required to demonstrate both a reasonable excuse for the default in appearing at the conference and a meritorious cause of action (see CPLR 5015[a][1]; 330 Wythe Ave. Assoc., LLC v ABR Constr., Inc., 55 AD3d 599; Jones v New York City Hous. Auth., 13 AD3d 489; Kandel v Hoffman, 309 AD2d 904; Precision Envelope Co. v Marcus & Co., 306 AD2d 263). The plaintiffs failed to demonstrate, by competent proof, the existence of a meritorious cause of action (see Brownfield v Ferris, 49 AD3d 790, 791; Smith v City of New York, 237 AD2d 344, 345).

SKELOS, J.P., MILLER, ENG, HALL and AUSTIN, JJ., concur.

20100601

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