Drazek v Vital Transp., Inc.

Drazek v Vital Transp., Inc. 2016 NY Slip Op 00475 Decided on January 27, 2016 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 January 27, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
THOMAS A. DICKERSON
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
2015-03470
(Index No. 4528/14)

[*1]Lesley Drazek, appellant,

v

Vital Transportation, Inc., respondent.

Lesley Drazek, Ridgewood, NY, appellant pro se.

Schlam Stone & Dolan, LLP, New York, NY (Jonathan Mazer of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated March 2, 2015, which denied his motion pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court dated October 2, 2014, inter alia, granting the defendant's cross motion to dismiss the complaint and to confirm a prior arbitration award upon the plaintiff's default.

ORDERED that the order dated March 2, 2015, is affirmed, with costs.

In an order dated October 2, 2014, the Supreme Court, inter alia, granted the defendant's cross motion to dismiss the complaint and to confirm a prior arbitration award. The Supreme Court noted that the plaintiff had "defaulted by not appearing at either the first or second call of the calendar" on October 2, 2014.

By order to show cause dated December 2, 2014, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the order dated October 2, 2014. In an order dated March 2, 2015, the Supreme Court denied that motion. The Supreme Court noted that, while the plaintiff might have had a reasonable excuse for his default in appearing at the calendar call, he failed to make the appropriate showing of merit. The plaintiff appeals from the order dated March 2, 2015.

The Supreme Court properly denied the plaintiff's motion pursuant to CPLR 5015(a)(1), as the plaintiff failed to demonstrate a potentially meritorious opposition to the defendant's cross motion (see Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980; see also Estrada v Selman, 130 AD3d 562; Thapt v Lutheran Med. Ctr., 89 AD3d 837).

LEVENTHAL, J.P., DICKERSON, MALTESE and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court