& Record, LLP, Bayside, NY (Sang J. Sim of counsel), for
Spitz & DeSantis, P.C., New York, NY (Marcy Sonneborn of
counsel), for respondents.
C. DILLON, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS-RADIX,
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal from an order of the Supreme Court, Orange
County (Catherine M. Bartlett, J.), dated September 28, 2016.
The order denied the plaintiffs' motion pursuant to CPLR
5015(a)(1) to vacate their default in appearing at a
conference on May 19, 2015, and, thereupon, to restore the
action to the active calendar.
that the order is affirmed, with costs.
November 2013, the plaintiffs commenced this action against
the defendants to recover damages for personal injuries
allegedly sustained in a motor vehicle accident on November
2, 2011. Issue was joined in January 2014. A preliminary
conference was held on October 14, 2014, which resulted in a
so-ordered stipulation directing, inter alia, the dates of
party depositions. Thereafter, the plaintiffs'
then-attorney failed to appear for a compliance conference
18, 2015. The Supreme Court adjourned the conference to
February 26, 2015, with a warning that the complaint would be
dismissed if the plaintiffs' attorney failed to appear
again. On February 26, 2015, the plaintiffs' attorney
arrived late for the conference, and on May 19, 2015, he
failed to appear for another compliance conference. By
written facsimile communication dated May 19, 2015, the court
notified the parties' attorneys that the complaint was
dismissed for lack of prosecution. In July 2016, the
plaintiffs, represented by new counsel, moved pursuant to
CPLR 5015(a)(1) to vacate the default and, thereupon, to
restore the action to the active calendar. The court denied
the motion, and the plaintiffs appeal.
order to vacate a default in appearing at a scheduled court
conference, a plaintiff must demonstrate both a reasonable
excuse for the default and a potentially meritorious cause of
action (see CPLR 5015[a]; Stein v
Doukas, 157 A.D.3d 743, 744; One West Bank, FSB v
Singer, 153 A.D.3d 714, 715; Gallery v
Messerschmitt, 151 A.D.3d 940; Wright v City of
Poughkeepsie, 136 A.D.3d 809). "A determination of
whether an excuse is reasonable lies within the sound
discretion of the Supreme Court" (Stein v
Doukas, 157 A.D.3d 743, 744). Although a court has
discretion to accept law office failure as a reasonable
excuse (see CPLR 2005), "a pattern of willful
default and neglect should not be excused" (Prudence
v White, 144 A.D.3d 655, 656; see Whitestone Constr.
Corp. v Nova Cas. Co., 129 A.D.3d 831, 832). A claim of
law office failure must be supported by a detailed and
credible explanation of the default at issue, as mere neglect
is not a reasonable excuse (see Ki Tae Kim v Bishop,
156 A.D.3d 776; One West Bank, FSB v Singer, 153
A.D.3d at 716; Onishenko v Ntansah, 145 A.D.3d 910).
the Supreme Court providently exercised its discretion in
determining that the plaintiffs did not offer a reasonable
excuse for their default. The excuse proffered by the
plaintiffs' former attorney, that he failed to appear at
the May 19, 2015, conference due to a malfunctioning GPS
system and that he "got lost," was unreasonable
under the circumstances, as it was not a detailed and
credible explanation for the claimed law office failure.
Moreover, the plaintiffs failed to set forth any excuse, let
alone a reasonable one, for their former attorney's
failure to appear at the compliance conference scheduled for
February 18, 2015, or why he arrived late for the adjourned
conference on February 26, 2015.
the plaintiffs failed to offer a reasonable excuse for their
default, the issue of whether they had a potentially
meritorious cause of action need not be addressed (see
Stein v Doukas, 157 A.D.3d 743; Ki Tae Kim v
Bishop, 156 A.D.3d 776).
plaintiffs' remaining contentions are either improperly
raised for the first time on appeal or without merit.
we agree with the Supreme Court's denial of the