Matter of Denton v City of Mount Vernon
2006 NY Slip Op 05015 [30 AD3d 600]
Decided on June 20, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on June 20, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ROBERT W. SCHMIDT, J.P.
STEPHEN G. CRANE
GABRIEL M. KRAUSMAN
PETER B. SKELOS
ROBERT J. LUNN, JJ.
2005-06075 DECISION & ORDER

[*1]In the Matter of Luna Allen Denton, appellant,

v

City of Mount Vernon, et al., respondents. (Index No. 16274/99)





Jasne, Florio & Florio, LLP, White Plains, N.Y. (Hugh G. Jasne
of counsel), for appellant.
Rodman and Campbell, P.C., Bronx, N.Y. (Mauverine D. Butler
of counsel), for respondents City of
Mount Vernon and Michael Jean
Jerome.
Weiner, Millo & Morgan, LLC, New York, N.Y. (Alexander
Fisher of counsel), for respondent
Costley G. Hamil.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Murphy, J.), entered May 3, 2005, which denied her motion, in effect, to vacate her default in complying with an order of the same court entered May 4, 2001, granting the unopposed motion of the defendant City of Mount Vernon pursuant to CPLR 3126 to the extent of directing the dismissal of the complaint unless she complied with certain discovery demands by a date certain.

ORDERED that the order is affirmed, with one bill of costs.

Upon the plaintiff's failure to comply with the conditional order of dismissal entered May 4, 2001, the order became absolute (see Echevarria v Pathmark Stores, 7 AD3d 750, 751; Hall v Penas, 5 AD3d 549; Marrone v Orson Holding Corp., 302 AD2d 371; Stewart v City of New York, 266 AD2d 452). To be relieved of the adverse impact of the conditional order, the plaintiff was required to demonstrate a reasonable excuse for her default and the existence of a meritorious claim (see Echevarria v Pathmark Stores, supra; Hall v Penas, supra at 549-550; Marrone v Orson [*2]Holding Corp., supra at 371-372; Stewart v City of New York, supra). The plaintiff's counsel failed to adequately explain and detail the alleged law office failure which occurred after the suspension of the attorney who had formerly handled the plaintiff's case (see generally Grezinsky v Mount Hebron Cemetery, 305 AD2d 542; Eretz Funding v Shalosh Assocs., 266 AD2d 184, 185). In the absence of a reasonable excuse for the plaintiff's default, the Supreme Court providently exercised its discretion in denying the plaintiff's motion, in effect, to vacate her default in complying with the conditional order.
SCHMIDT, J.P., CRANE, KRAUSMAN, SKELOS and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court