Joseph Grinkorn v Joseph Seeley

Grinkorn v Seeley 2006 NY Slip Op 04389 [30 AD3d 376] Decided on June 6, 2006 Appellate Division, Second 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 6, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
STEPHEN G. CRANE, J.P.
REINALDO E. RIVERA
PETER B. SKELOS
MARK C. DILLON, JJ.
2005-07580 DECISION & ORDER

[*1]Joseph Grinkorn, appellant,

v

Joseph Seeley, d/b/a Seeley Contracting, et al., respondents. (Index No. 30129/00)




Zisholtz & Zisholtz, LLP, Mineola, N.Y. (Stuart S. Zisholtz of
counsel), for appellant.
Gwertzman, Lefkowitz, Burman, Smith & Marcus, New
York, N.Y. (David Smith and
Roberta Burman of counsel), for
respondent Joseph Seeley, d/b/a Seeley
Contracting.
Thomas G. Connolly, New York, N.Y., for respondent
Michael Williams, d/b/a Williams
Electrical Contracting.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated June 27, 2005, which denied his motion to vacate his default in proceeding to trial and restore the case to the trial calendar.

ORDERED that the order is affirmed, with one bill of costs.

CPLR 5015(a) allows a court to vacate a default entered against a party "upon such terms as may be just" if the default was "excusable" (CPLR 5015[a][1]). In order to establish that a default is excusable, a party must show both a reasonable excuse for the default and a meritorious cause of action or defense (see Zeltser v Sacerdote, 24 AD3d 541, 542; Kumar v Yonkers Contr. Co., 14 AD3d 493, 494). Here, the plaintiff failed to establish a reasonable excuse for his default. His vague affidavit did not establish that the default was attributable to law office failure; indeed, the record makes clear that his default was the direct consequence of his discharging his attorney after the court ordered the parties to begin jury selection (see P & K Marble v Pearce, 168 AD2d 439, [*2]439). Moreover, contrary to the plaintiff's contention, CPLR 321(c) does not provide a party with an automatic 30-day stay upon an attorney's mere request to withdraw from a case (see Zacher v Oakdale Islandia Ltd. Partnership, 271 AD2d 441).

Under these circumstances, it is irrelevant whether or not the plaintiff's claim may have had merit.
CRANE, J.P., RIVERA, SKELOS and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court