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