Opinion
2018–11126 Index No. 20620/10
08-07-2019
WESTCHESTER MEDICAL CENTER, Appellant, v. Charles IZZO, Respondent.
Arnold A. Arpino & Associates, P.C., Smithtown, NY, for appellant. Joseph J. Haspel, Goshen, NY, for respondent.
Arnold A. Arpino & Associates, P.C., Smithtown, NY, for appellant.
Joseph J. Haspel, Goshen, NY, for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action in 2010 to recover payment for medical services allegedly rendered to the defendant in 2008. The action was stayed by the defendant's filing of a Chapter 13 bankruptcy petition in September 2016. By notice dated November 9, 2017, the Supreme Court requested the plaintiff's counsel to provide an update of the status of the stay and provided an email address for the update. The notice further provided that the plaintiff's counsel's appearance was required at a conference on December 18, 2017. The plaintiff's counsel failed to appear for the conference and, on December 18, 2017, the court directed dismissal of the action pursuant to 22 NYCRR 202.27. Six months later, in June 2018, the plaintiff moved to vacate its default and restore the action to the calendar. The defendant opposed the motion. The court denied the plaintiff's motion, determining that the plaintiff's counsel's conclusory assertion that he believed he was not obligated to appear at the conference was insufficient to excuse the default in appearing. The plaintiff appeals.
In order to vacate its default in appearing at the conference, 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] ; 22 NYCRR 202.27 ; Polsky v. Simon, 145 A.D.3d 693, 693, 43 N.Y.S.3d 101 ; Foley Inc. v. Metropolis Superstructures, Inc. , 130 A.D.3d 680, 11 N.Y.S.3d 873 ). Whether an excuse is reasonable is a determination within the sound discretion of the Supreme Court (see GMAC Mtge., LLC v. Guccione, 127 A.D.3d 1136, 9 N.Y.S.3d 83 ; Walker v. Mohammed, 90 A.D.3d 1034, 934 N.Y.S.2d 854 ). Here, the plaintiff's counsel offered a conclusory and unsubstantiated allegation that was insufficient to constitute a justifiable excuse for his failure to appear at the conference (see Hanscom v. Goldman, 109 A.D.3d 964, 965, 972 N.Y.S.2d 76 ). Accordingly, we agree with the Supreme Court's determination to deny the plaintiff's motion to vacate its default and restore the action to the calendar. The parties' remaining contentions need not be reached in light of our determination.
RIVERA, J.P., HINDS–RADIX, LASALLE and IANNACCI, JJ., concur.