Bank of New York v. Mohammed, 130 A.D.3d 1419 (N.Y. App. Div. 2015). · Go Syfert
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Bank of New York v. Mohammed, 130 A.D.3d 1419 (N.Y. App. Div. 2015). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases · …does not deny that he was notified under the e-track system. ⚠ not in text
cited 2× by 2 distinct cases · …in order to vacate a dismissal pursuant to 22 nycrr 202.27, a plaintiff is required to demonstrate a reasonable excuse for his or her failure to appear and a potentially meritorious cause of action ✓
cited 2× by 1 distinct case · …the absence of a reasonable excuse for the repeated failures of counsel to appear for scheduled conferences ✓
13 citation events (13 in the last 25 years) across 2 distinct courts.
Strongest positive: Bank of New York Mellon v. Slavin (nyappdiv, 2017-12-14)
Top citers, strongest first. 2 distinct citers. How cited ↗
discussed Cited as authority (rule) Bank of New York Mellon v. Slavin (2×)
N.Y. App. Div. · 2017 · confidence medium
Second, we already concluded that plaintiff could not revive the first action because it failed to have a reasonable excuse for failing to appear at the court-mandated conference ( Bank of N.Y. v Mohammed , 130 AD3d at 1420).
discussed Cited as authority (rule) Bank of New York Mellon v. Slavin
N.Y. Sup. Ct. · 2016 · confidence medium
The Appellate Division, in affirming the court’s denial of plaintiff’s application to vacate the 2013 dismissal order, noted “the excuse proffered by plaintiff for failing to appear at the two conferences—that counsel calendared the conference on the wrong date—is not a reasonable excuse, especially in light of the fact that counsel committed the same error twice.” (Bank of N.Y., 130 AD3d at 1420.) The prior action was dismissed on account of plaintiff’s default, which “should be treated consistently with what it is, a serious failure to recognize the importance of the orderly …
Retrieving the full opinion text from the archive…
Bank of New York, as Trustee for Certificateholders Cwabs, Inc., Asset-Back Certificates, Series 2005-IM3
v.
Erin Mohammed, Also Known as Erin Slavin
Appellate Division of the Supreme Court of the State of New York.
Jul 30, 2015.
130 A.D.3d 1419
Devine.
Published
Devine, J.

Appeal from an order of the Supreme Court (Zwack, J.), entered July 29, 2014 in Rensselaer County, which denied plaintiff’s motions to vacate the dismissal of its foreclosure action.

Plaintiff commenced this foreclosure action against defendant Erin Mohammed in 2006 and was granted a default judgment in 2009. No judgment of foreclosure was ever submitted, and Supreme Court (McDonough, J.) scheduled a status conference for December 7, 2012. After plaintiff failed to appear at the conference, the action was dismissed pursuant to 22 NYCRR 202.27.

Plaintiff thereafter moved to vacate the dismissal and to restore the action to the court calendar, blaming its failure to appear at the conference on a scheduling error by its counsel’s office. Supreme Court (Zwack, J.) scheduled a conference on the motion for December 16, 2013, and plaintiff again failed to appear. Plaintiff then filed a second motion, again seeking to vacate the dismissal of the foreclosure action and also seeking to vacate any defaults from its failure to attend the December 2013 conference, citing another failure to properly calendar the[*1420] conference date by counsel. Supreme Court thereafter denied both motions, citing a lack of a reasonable excuse for failing to appear at the conferences. Plaintiff now appeals.

We affirm. In order to vacate a dismissal pursuant to 22 NYCRR 202.27, plaintiff was required to demonstrate a reasonable excuse for its failure to appear and a potentially meritorious cause of action (see 9 Bros. Bldg. Supply Corp. v Buonamicia, 106 AD3d 968, 968 [2013]; Biton v Turco, 88 AD3d 519 [2011]). Here, the excuse proffered by plaintiff for failing to appear at the two conferences — that counsel calendared the conference on the wrong date — is not a reasonable excuse, especially in light of the fact that counsel committed the same error twice (see Hanscom v Goldman, 109 AD3d 964, 965 [2013]; Siculan v Koukos, 74 AD3d 946, 947 [2010]). Given the absence of a reasonable excuse for the repeated failures of counsel to appear for scheduled conferences, Supreme Court properly denied plaintiffs motions.

Garry, J.P., Rose and Clark, JJ., concur. Ordered that the order is affirmed, with costs.