Yong U Lee v Huan Wen Zhang |
2015 NY Slip Op 08158 [133 AD3d 651] |
November 12, 2015 |
Appellate Division, Second Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Yong U Lee, Appellant, v Huan Wen Zhang et al., Respondents. |
Gary S. Park, Flushing, N.Y. (Yousef Lee of counsel), for appellant.
Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weinstein, J.), entered October 30, 2013, which denied his renewed motion, inter alia, to vacate the dismissal of the action.
Ordered that the order is affirmed, with costs.
On May 27, 2010, the action was dismissed after the plaintiff failed to appear in the Trial Scheduling Part.
To vacate the dismissal of an action pursuant to CPLR 5015 (a) (1), a plaintiff must
demonstrate both a reasonable excuse for the default and a potentially meritorious cause
of action (see Henry v
Lewis, 118 AD3d 669, 670 [2014]; Schmitt v Jeyalingam, 71 AD3d 757 [2010]; Santiago v Santana, 54 AD3d
929, 930 [2008]), and must move within one year after receiving notice of the
dismissal (see CPLR 5015 [a] [1]; Bistre v Rongrant Assoc., 109 AD3d 778, 779 [2013]; Matter of Downing v New York
City Dept. of Educ., 108 AD3d 624, 626 [2013]; Prospect Park Mgt., LLC v
Beatty, 73 AD3d 885, 886 [2010]). Here, the plaintiff's renewed motion was
untimely, given the extensive delay between the time that the plaintiff received notice of
the dismissal of the action and the filing of his renewed motion to vacate the dismissal
(see Matter of Rockland Bakery,
Inc. v B.M. Baking Co., Inc., 83 AD3d 1080, 1082 [2011]; Matter of Putnam County Natl.
Bank v JP Morgan Chase Bank N.A., 57 AD3d 677, 678 [2008]; Nahmani v
Town of Ramapo, 262 AD2d 291 [1999]). Furthermore, the plaintiff failed to
articulate any basis for the more than 2
The plaintiff's remaining contentions, raised for the first time on appeal, are not properly before this Court (see Perla v Daytree Custom Bldrs., Inc., 119 AD3d 758, 760 [2014]). Balkin, J.P., Chambers, Cohen and Hinds-Radix, JJ., concur.