Conklin v Metro N. Commuter R. R. Co.

Conklin v Metro N. Commuter R.R. Co. 2007 NY Slip Op 08277 [45 AD3d 259] November 1, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Gary W. Conklin, Appellant,
v
Metro North Commuter Railroad Company, Respondent.

—[*1] Law Office of Ming Hai, P.C., Flushing (Jonathan Davis of counsel), for appellant.

Richard K. Bernard, New York City (José R. Rios of counsel), for respondent.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 2, 2006, which denied plaintiff's motion to vacate a prior order that had dismissed the complaint, and to restore his action to the calendar, unanimously affirmed, without costs.

Assuming plaintiff never received notice of the dismissal order and could move to vacate and restore more than one year after entry of the dismissal order, he still had to show a meritorious action and a reasonable excuse for his default (see Acevedo v Navarro, 22 AD3d 391 [2005]). Plaintiff's decision to prosecute his other claim, which was ultimately denied, does not excuse his neglect of this action (Bowman v Lacovara, 37 AD3d 287 [2007]). Moreover, even after two opportunities, plaintiff has still failed to establish the existence of a meritorious cause of action (see Ortiz v Silver Dollar Tr. Inc., 10 AD3d 585 [2004]). Concur—Lippman, P.J., Mazzarelli, Friedman, Marlow and Buckley, JJ.