PACINELLO v. COHEN, 2004-08065 [2d Dept 4-17-2007

DECISION ORDER

The defendant did not offer a reasonable excuse for his failure to appear at trial on November 18, 2003, and his subsequent failure to appear at the inquest on damages on November 25, 2003. Thus, the Supreme Court providently exercised its discretion in denying his motion pursuant to CPLR 5015(a)(1) to vacate his defaults ( see Donaghy v Donaghy, 294 AD2d 329; see also Rajn Corp. v L S Constr. Co., Inc., 19 AD3d 158; Time Warner City Cable v Tri State Auto, 5 AD3d 153; Liselli v Stonig, 300 AD2d 549).

Moreover, the court properly denied that branch of the defendant's motion which was to dismiss the first cause of action pursuant to CPLR 3211(a)(1) and (7) ( see Leon v Martinez, 84 NY2d 83, 87-88; Corrado v Rubine, 25 AD3d 748).

After the defendant failed to appear on the scheduled trial date, he was notified that the case would be placed on the calendar one week later for an inquest on damages. Moreover, after the defendant's efforts to vacate his defaults proved unsuccessful, he was given notice, on or about April 13, 2004, that judgment would be entered against him on or after May 1, 2004. Under these circumstances, the defendant has no grounds to complain of lack of notice pursuant to CPLR 3215(g)(1).

Finally, the court properly determined that the judgment was not entered in violation of 22 NYCRR 202.48(a) ( see Funk v Barry, 89 NY2d 364).

SCHMIDT, J.P., SPOLZINO, KRAUSMAN and FISHER, JJ., concur.