Opinion
2015-03856 Index No. 4789/11.
02-10-2016
Malika WRIGHT, etc., appellant, v. CITY OF POUGHKEEPSIE, et al., respondents.
Gilbert J. West, Sr., Poughkeepsie, N.Y., for appellant. O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, LLP, White Plains, N.Y. (Montgomery L. Effinger of counsel), for respondents City of Poughkeepsie and Poughkeepsie School District. Barry, McTiernan & Moore LLC, New York, N.Y. (Laurel A. Wedinger of counsel), for respondent Doug Usher.
Gilbert J. West, Sr., Poughkeepsie, N.Y., for appellant.
O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, LLP, White Plains, N.Y. (Montgomery L. Effinger of counsel), for respondents City of Poughkeepsie and Poughkeepsie School District.
Barry, McTiernan & Moore LLC, New York, N.Y. (Laurel A. Wedinger of counsel), for respondent Doug Usher.
Opinion
In an action, inter alia, to recover damages for assault and battery, and intentional infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated January 9, 2015, which denied her motion to vacate a prior order of the same court dated October 15, 2013, dismissing the complaint based on her failure to appear at a compliance conference.
ORDERED that the order dated January 9, 2015, is affirmed, with costs.
To vacate her default in appearing at a scheduled compliance conference, the plaintiff was required to demonstrate both a reasonable excuse and a potentially meritorious cause of action (see CPLR 5015[a]1; Citicorp Trust Bank, FSB v. Makkas, 127 A.D.3d 907, 907–908, 7 N.Y.S.3d 379; Selechnik v. Law Off. of Howard R. Birnbach, 120 A.D.3d 1220, 1220, 991 N.Y.S.2d 894). Although the court has discretion to accept law office failure as a reasonable excuse, a pattern of willful default and neglect should not be excused (see Betz v. Carbone, 126 A.D.3d 743, 744, 5 N.Y.S.3d 256; Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66). Here, the repeated failure of the plaintiff's attorney to appear on scheduled conference dates and to keep apprised of court dates constituted a pattern of willful default and neglect which cannot be excused (see Whitestone Constr. Corp. v. Nova Cas. Co., 129 A.D.3d 831, 832, 13 N.Y.S.3d 110; Selechnik v. Law Off. of Howard R. Birnbach, 120 A.D.3d at 1220, 991 N.Y.S.2d 894; Brownfield v. Ferris, 49 A.D.3d 790, 791, 855 N.Y.S.2d 565). Moreover, the plaintiff did not establish a reasonable excuse for the approximately one-year delay in moving to vacate her default (see TD Bank, N.A. v. Spector, 114 A.D.3d 933, 934, 980 N.Y.S.2d 836). In light of the lack of a reasonable excuse, it is unnecessary to determine whether the plaintiff demonstrated the existence of potentially meritorious cause of action (see Selechnik v. Law Off. of Howard R. Birnbach, 120 A.D.3d at 1220, 991 N.Y.S.2d 894).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
LEVENTHAL, J.P., AUSTIN, ROMAN, MILLER and BARROS, JJ., concur.