Matter of Le Monda v City of New York

Matter of Le Monda v City of New York 2018 NY Slip Op 01546 Decided on March 8, 2018 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 March 8, 2018
Renwick, J.P., Richter, Andrias, Kapnick, Kahn, JJ.
5931 108161/10

[*1]In re Mary Ann Nicole Le Monda, Petitioner-Appellant,

v

City of New York, et al., Respondents-Respondents.

Rutkin & Wolf PLLC, White Plains (Carmine Lippolis of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for respondents.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 2, 2016, which denied petitioner's motion to vacate the January 15, 2013 dismissal of the proceeding brought pursuant to CPLR article 78 and restore the matter to the calendar, unanimously affirmed, without costs.

The motion, belatedly made more than three years after the pre-note of issue action had been dismissed after both petitioner and her counsel failed to appear at a status conference, was properly denied.

Petitioner's bare and unsubstantiated assertion of law office failure by her prior counsel is insufficient to establish a reasonable excuse for the default (see Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454, 455 [1st Dept 2010], lv dismissed 15 NY3d 863 [2010]; Perez v New York City Hous. Auth., 47 AD3d 505 [1st Dept 2008]). Because petitioner failed to proffer an acceptable excuse for the default, it is not necessary to determine whether there is any merit to the petition (see Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC, 95 AD3d 789, 790 [1st Dept 2012]).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2018

CLERK