Stewart v. Petrolite Inc.

Stewart v Petrolite Inc. (2022 NY Slip Op 06568) Stewart v Petrolite Inc. 2022 NY Slip Op 06568 Decided on November 17, 2022 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: November 17, 2022 Before: Kern, J.P., Scarpulla, Rodriguez, Pitt, JJ. Index No. 36402/17E Appeal No. 16686 Case No. 2022-00508 [*1]Jennifer Stewart, Plaintiff-Respondent, v Petrolite Incorporated et al., Defendants-Appellants. Mark A. Bonilla, Bellmore, for appellants. The Licatesi Law Group, LLP, Uniondale (Michael Licatesi of counsel), for respondent. Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about September 10, 2021, which denied defendant Petrolite Incorporated's motion to vacate a prior order, same court (John R. Higgitt, J.), entered on or about November 22, 2019, striking its answer pursuant to 22 NYCRR 202.27, unanimously affirmed, with costs. The motion court providently exercised its discretion in denying the motion of defendant Petrolite Incorporated (Petrolite) to vacate its default, as it failed to demonstrate a reasonable excuse (see LePatner & Assoc., LLP v Horowitz, 81 AD3d 472 [1st Dept 2011]). Counsel was still representing Petrolite when he failed to appear at two preliminary conferences on its behalf, and he was aware of his obligation to do so. A claim of law office failure should be rejected where "the record shows that defense counsel was fully aware of his obligations and intentionally and repeatedly failed to attend to them" (Imovegreen, LLC v Frantic, LLC, 139 AD3d 539 [1st Dept 2016]; see also Agosto v Western Beef Retail, Inc., 175 AD3d 1192, 1192 [1st Dept 2019]). Moreover, Petrolite's new counsel failed to explain the reason for its delay in bringing this motion, nearly 18 months after the default order was entered (see Agosto, 175 AD3d 1192; see also Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454 [1st Dept 2010]). In light of Petrolite's failure to provide a reasonable excuse, it is unnecessary to address whether it had a meritorious defense (see Gonzalez v Praise the Lord Dental, 79 AD3d 550 [1st Dept 2010]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: November 17, 2022