Opinion
2015-05-27
Melissa MAZZIO, appellant, v. Arthur JENNINGS, et al., respondents.
Chambers, J.P., Dickerson, LaSalle and Barros, JJ., concur.
Melissa Mazzio, Pine Bush, N.Y., appellant pro se. Christopher B. Kleister, Washingtonville, N.Y., for respondents.
In an action for the return of a down payment given pursuant to a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated April 22, 2014, which denied her motion to vacate the dismissal of the action and to restore the action to active status.
ORDERED that the order is affirmed, with costs.
The action was dismissed on October 1, 2009, when neither the plaintiff nor her counsel appeared at a court conference ( see 22 NYCRR 202.27[b] ). To be relieved of the default in appearing, the plaintiff was required to demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action ( see CPLR 5015[a][1]; Murray v New York City Health & Hosps. Corp., 52 A.D.3d 792, 793, 861 N.Y.S.2d 372; Brownfield v. Ferris, 49 A.D.3d 790, 855 N.Y.S.2d 565; Zeltser v. Sacerdote, 24 A.D.3d 541, 542, 808 N.Y.S.2d 286). Under all of the circumstances, including the plaintiff's failure to provide a reasonable excuse for her lengthy delay in moving to vacate the dismissal of the action and to restore the action to active status, the Supreme Court providently exercised its discretion in denying the plaintiff's motion ( see Brown v. Vanchieri, 64 A.D.3d 678, 881 N.Y.S.2d 909; Seven Acre Wood St. Assoc. v. Wood, 286 A.D.2d 432, 729 N.Y.S.2d 893; Piacentini v. Mineola Union Free School Dist., 267 A.D.2d 290, 291, 700 N.Y.S.2d 205; Polans v. Swedish Crown Casual Furniture Corp., 69 A.D.2d 833, 415 N.Y.S.2d 85).