Natural Product Import America, Inc. v. J&J Express Trucking Corp.

Natural Prod. Import Am., Inc. v J&J Express Trucking Corp. (2016 NY Slip Op 01654)

Natural Prod. Import Am., Inc. v J&J Express Trucking Corp.

2016 NY Slip Op 01654

Decided on March 9, 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 March 9, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
HECTOR D. LASALLE, JJ.

2014-09040
(Index No. 19723/09)

[*1]Natural Product Import America, Inc., et al., appellants,

v

J & J Express Trucking Corporation, et al., defendants, Universal Maritime Service Corp., respondent.

Kevin Kerveng Tung, P.C., Flushing, NY, for appellants.

Freehill Hogan & Mahar LLP, New York, NY (Michael Fernandez and William Yost of counsel), for respondent.

The Law Offices of Giacchino J. Russo & Associates, P.C., Flushing, NY (Thailary Lim of counsel), for defendant Mai Jin H-Sealink Number 0099125.

DECISION & ORDER

In an action, inter alia, to recover damages for negligence and conversion, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated July 22, 2014, as denied their motion (a) pursuant to CPLR 5015(a) to vacate an order of the same court (Weinstein, J.) dated January 24, 2013, entered upon their failure to appear at certain pretrial conferences, directing the dismissal of the complaint, and (b) to restore the action to the trial calendar.

ORDERED that the order dated July 22, 2014, is affirmed insofar as appealed from, with costs.

To vacate their default in appearing at two pretrial conferences, the plaintiffs were required to demonstrate both a reasonable excuse for their default and the existence of a potentially meritorious cause of action (see CPLR 5015[a][1]; Thomas v Avalon Gardens Rehabilitation & Health Care Ctr., 107 AD3d 694, 694; Antoine v Bee, 26 AD3d 306, 306; Gironda v Katzen, 19 AD3d 644, 644). The plaintiffs failed to proffer a reasonable excuse for their failure to appear (see Grippi v Balkan Sewer & Water Main Serv., 66 AD3d 837, 838; Brownfield v Ferris, 49 AD3d 790, 791; Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554; De Vito v Marine Midland Bank, 100 AD2d 530, 531). In view of the lack of a reasonable excuse, it is unnecessary to consider whether they demonstrated the existence of a potentially meritorious cause of action (see Vitolo v Suarez, 130 AD3d 610, 612; EMC Mtge. Corp. v Lamb, 126 AD3d 669, 669; Selechnik v Law Off. of Howard R. Birnbach, 120 AD3d 1220, 1220).

Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion pursuant to CPLR 5015(a) to vacate an order dated January 24, 2013, entered upon [*2]their default, and to restore the action to the trial calendar.

MASTRO, J.P., LEVENTHAL, AUSTIN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court