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Rosa Victoria Pichardo-Garcia v. Josephine's Spa Corp

New York Supreme and/or Appellate Courts Appellate Division, First Department


January 3, 2012

ROSA VICTORIA PICHARDO-GARCIA,
PLAINTIFF-RESPONDENT,
v.
JOSEPHINE'S SPA CORP.,
DEFENDANT-APPELLANT.

Pichardo-Garcia v Josephine's Spa Corp.

Decided on January 3, 2012

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.

Gonzalez, P.J., Andrias, DeGrasse, Richter, Abdus-Salaam, JJ.

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about September 14, 2010, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to vacate an order of dismissal, and restored the action to the court calendar, unanimously reversed, on the law and the facts, without costs, and the motion denied. The Clerk is directed to enter judgment in defendant's favor dismissing the complaint.

In the absence of a determination by the motion court, pursuant to CPLR 5015(a)(1), of the reasonableness of plaintiff's 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).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2012

CLERK

20120103

© 1992-2012 VersusLaw Inc.



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