State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 30, 2016 522159
________________________________
US BANK NATIONAL ASSOCIATION,
as Trustee for CREDIT
SUISSE FIRST BOSTON ARMT
2004-4,
Appellant, MEMORANDUM AND ORDER
v
LEAH THURM,
Respondent,
et al.,
Defendant.
________________________________
Calendar Date: June 2, 2016
Before: McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.
__________
Woods Oviatt Gilman LLP, Rochester (Richard S. Mullen of
counsel), for appellant.
Kalter Kaplan Zeiger & Forman, Woodbourne (Terry S. Forman
of counsel), for respondent.
__________
Garry, J.
Appeal from an order of the Supreme Court (Meddaugh, J.),
entered July 27, 2015 in Sullivan County, which denied
plaintiff's motion to vacate the dismissal of its foreclosure
action.
Plaintiff commenced this foreclosure action in 2008 and was
granted an order of reference in 2010. On March 4, 2013, as the
case had not been placed on the trial calendar and no formal
applications had been made since 2010, a mandatory conference was
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held. At the conference, plaintiff was not ready to proceed and
requested 30 days to submit a formal motion. Supreme Court
(Ceresia Jr., J.) granted the request, with the understanding
that a failure to submit a motion within that time period would
result in the action being dismissed. Plaintiff failed to submit
a motion within 30 days and, on April 16, 2013, the court
dismissed the action as abandoned pursuant to 22 NYCRR 202.27.
Plaintiff's subsequent motion to vacate the dismissal was denied.
Plaintiff appeals, and we affirm.
Pursuant to 22 NYCRR 202.27, a court may dismiss an action
when, at any conference, "all parties do not appear and proceed
or announce their readiness to proceed immediately." Here,
plaintiff was not ready to proceed at the time of the conference,
and, thereafter, despite being given another 30 days to proceed,
plaintiff failed to submit a formal motion. Accordingly, Supreme
Court properly dismissed the action as abandoned pursuant to 22
NYCRR 202.27.
A motion to vacate a dismissal pursuant to 22 NYCRR 202.27
must be supported by a reasonable excuse for the failure to
proceed and a meritorious cause of action (see CPLR 5015 [a] [1];
Cazeau v Paul, 2 AD3d 477, 478 [2003]). In its motion to vacate,
plaintiff relied on an affirmation from its current counsel that
the failure to proceed with the foreclosure action was due to the
fact that settlement negotiations with defendant were ongoing.
Plaintiff's current counsel, however, was not representing
plaintiff at the time of the conference, nor does it appear from
the record that it represented plaintiff at any time prior to the
dismissal of the action. Thus, plaintiff's counsel had no
personal knowledge of the facts regarding the default and the
affirmation was therefore insufficient to establish a reasonable
excuse (see Northern Source, LLC v Kousouros, 106 AD3d 571, 572
[2013]; Brehm v Patton, 55 AD3d 1362, 1363 [2008]). Further, the
evidence presented in support of a reasonable excuse for the
first time in plaintiff's reply was properly disregarded by
Supreme Court (Meddaugh, J.) (see Duran v Milord, 126 AD3d 932,
933 [2015]; Jackson-Cutler v Long, 2 AD3d 590, 590 [2003]; see
generally Jones v Castlerick, LLC, 128 AD3d 1153, 1154 [2015]).
In the absence of a reasonable excuse, it is unnecessary to
determine whether plaintiff demonstrated a meritorious cause of
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action (see Rutnik & Corr CPA's, P.C. v Guptill Farms, Inc., 127
AD3d 1531, 1532 [2015]).
McCarthy, J.P., Lynch, Devine and Aarons, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court