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9 Brothers Building Supply Corp. v. Buonamicia

Supreme Court of New York, Second Department

May 22, 2013

9 Brothers Building Supply Corp., respondent,
v.
Theresa Buonamicia, defendant, Diego Cuervo, appellant. Index No. 11469/00

Lester & Associates, P.C., Garden City, N.Y. (Roy J. Lester and Gabriel R. Korinman of counsel), for appellant.

Long, Tuminello, Besso, Seligman, Werner, Sullivan & Aulivola, LLP, Bay Shore, N.Y. (Michelle Aulivola of counsel), for respondent.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendant Diego Cuervo appeals from an order of the Supreme Court, Suffolk County (Mayer, J.), dated May 6, 2011, which denied his motion to vacate a prior order of the same court dated April 27, 2009, granting the plaintiff's application, in effect, pursuant to 22 NYCRR 202.27 to strike his answer and for judgment against him upon his default in appearing at a conference, and setting the matter down for an inquest.

ORDERED that the order dated May 6, 2011, is affirmed, with costs.

In order to vacate the order striking his answer based upon his default in appearing for a scheduled conference before the court, the appellant was required to demonstrate both a reasonable excuse for his failure to appear and a potentially meritorious defense (see Hwang v Tam, 72 A.D.3d 741; D & W Constr. v Israel, 54 A.D.3d 889; Gazetten Contr., Inc. v HCO, Inc., 45 A.D.3d 530; M.S. Hi-Tech, Inc. v Thompson, 23 A.D.3d 442; Travis v Mason, 17 A.D.3d 449; Contractors Cas. & Sur. Co. v 535 Broadhollow Realty, 276 A.D.2d 737, 738; CPLR 5015[a][1]). "The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the trial court" (Matter of Gambardella v Ortov Light, 278 A.D.2d 494, 495; see Travis v Mason, 17 A.D.3d at 450).

Here, the appellant failed to establish a reasonable excuse for his failure to appear at the scheduled conference (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 51 A.D.3d 717; cf. Orwell Bldg. Corp. v Bessaha, 5 A.D.3d 573).

Accordingly, the Supreme Court properly denied the appellant's motion to vacate the order dated April 27, 2009.

SKELOS, J.P., HALL, LOTT and HINDS-RADIX, JJ., concur.


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