1032-1034 Lexington Ave., Ltd. v. Rogers , 2021 NY Slip Op 02973 ( 2021 )

1032-1034 Lexington Ave., Ltd. v Rogers (2021 NY Slip Op 02973)

1032-1034 Lexington Ave., Ltd. v Rogers

2021 NY Slip Op 02973

Decided on May 11, 2021

Appellate Division, First 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 and Entered: May 11, 2021
Before: Kern, J.P., González, Scarpulla, Mendez, JJ.

Index No. 111895/10 Appeal No. 13801 Case No. 2019-04938

[*1]1032-1034 Lexington Avenue, Ltd., Plaintiff-Respondent,

v

Jackie Rogers, Defendant-Appellant.

Law Office of Robert G. Leino, New York (Robert G. Leino of counsel), for appellant.

Avrom R. Vann, P.C., New York (Avrom R. Vann of counsel), for respondent.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 16, 2019, which denied defendant's motion to vacate a judgment entered upon her default, unanimously affirmed, without costs.

The motion court did not abuse its discretion in refusing to vacate defendant's repeated defaults in appearing for trial (see Guerre v Trustees of Columbia Univ. in City of N.Y., 300 AD2d 29 [1st Dept 2002]). Following the adjournments of the pretrial conferences at which defendant failed to appear, the matter was set down for trial on March 21, 2018. Defendant failed to appear for trial due to a snowstorm on that date, and the matter was set down for trial on April 11, 2018 and marked final. Defendant again failed to appear, sending a message to the motion court through her business manager on the day of trial that she was too ill to attend. Given defendant's failure to make arrangements to appear on the trial date, either in person or through counsel, in the three weeks following her March 21, 2018 failure to attend, the motion court providently determined that her unsupported excuse for defaulting was unreasonable (Guerre at 29). Given this pattern of default, the motion court declined to reach the issue of whether defendant had a meritorious defense to the action, and we decline to reach the issue for the same reason (Matter of Bendeck v Zablah, 105 AD3d 457 [1st Dept 2013]).

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 11, 2021