New York Nightlife, LLC v Wagner Davis P.C.

New York Nightlife, LLC v Wagner Davis P.C. 2012 NY Slip Op 01121 Decided on February 14, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 14, 2012
Mazzarelli, J.P., Saxe, Moskowitz, Freedman, Manzanet-Daniels, JJ.
6797 603740/07

[*1]New York Nightlife, LLC, Plaintiff-Appellant,

v

Wagner Davis P.C., Defendant, Brian Owens, Defendant-Respondent.




Law Offices of Edward A. Mermelstein & Associates, New
York (Edward A. Mermelstein of counsel), for appellant.
Law Offices of Mangan Ginsberg LLP, New York (Michael P.
Mangan of counsel), for respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered January 26, 2010, which denied plaintiff's motion to vacate the dismissal of the action for failure to proceed to trial, unanimously affirmed, without costs.

In this contract action, plaintiff's principal, a Russian citizen with a residence in New York, who had been subpoenaed by defendants, failed to appear for trial and the court dismissed the action (see CPLR 3215[a]; 22 NYCRR 202.27). Even assuming that a reasonable excuse for the principal's failure to appear was provided, based on his unsubstantiated need to return to Russia to secure an extension of his visa, plaintiff failed to show that it has a meritorious cause of action (Biton v Turco, 88 AD3d 519 [2011]; Carroll v Nostra Realty Corp., 54 AD3d 623 [2008], lv dismissed 12 NY3d 792 [2009]). Thus, the court
providently exercised its discretion in denying the motion to vacate the default.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2012

CLERK