Tenamaza v Knickerbocker Constr. II, LLC

Tenamaza v Knickerbocker Constr. II, LLC 2012 NY Slip Op 04928 Decided on June 19, 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 June 19, 2012
Mazzarelli, J.P., Saxe, DeGrasse, Richter, Abdus-Salaam, JJ.
7959 114809/08

[*1]Segundo Jesus Tenamaza, Plaintiff-Respondent,

v

Knickerbocker Construction II, LLC, et al., Defendants/Third-Party Plaintiffs-Appellants, MC & O Contracting, Inc., Third-Party Defendant-Appellant, MC & O Masonry, Inc., et al., Third-Party Defendants.




Rutherford & Christie, LLP, New York (Jon E. Newman of
counsel), for Knickerbocker Construction II, LLC, East 170th
Street Associates, L.P., and The Doe Fund, Inc., appellants.
Cascone & Kluepfel, LLP, Garden City (Michael T. Reagan of
counsel), for MC & O Contracting, Inc., appellant.
Greenberg & Stein, P.C., New York (Ian Asch of counsel), for
respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered July 27, 2011, which, in this personal injury action, granted plaintiff's motion to vacate an order, same court and Justice, entered January 25, 2011, granting defendants' motion and third-party defendant MC & O Contracting, Inc.'s cross motion to strike the complaint pursuant to CPLR 3126, unanimously reversed, on the law, without costs, and plaintiff's motion denied. The Clerk is directed to enter judgment dismissing plaintiff's complaint.

Although "there is a strong public policy favoring resolution of cases on the merits" (Ferguson v Hess Corp., 89 AD3d 599, 599 [2011]), the excuse plaintiff offered for his failure to attend multiple depositions and to keep in contact with his counsel was unreasonable. The affidavit plaintiff submitted in support of his motion fails to mention, let alone explain, how he was unaware of the deposition scheduled for June 23, 2010, when he executed medical authorizations a mere 20 days earlier. Nor did plaintiff's counsel demonstrate that they undertook reasonable efforts to locate plaintiff. As a "plaintiff's failure to maintain contact with his attorney and to keep himself apprised of the progress of his lawsuit [does not] constitute a reasonable excuse for [a] default," plaintiff's motion should have been denied (Sheikh v New York City Tr. Auth., 258 AD2d 347 [1999]). [*2]

Plaintiff's arguments pertaining to defendants' motion and MC & O's cross motion to strike the complaint are misplaced, as
plaintiff never appealed from the order granting those motions (see Pergamon Press v Tietze, 81 AD2d 831 [1981], lv dismissed 54 NY2d 605 [1981]). In any event, the arguments are unavailing.

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

ENTERED: JUNE 19, 2012

DEPUTY CLERK