The following papers read on this motion:Papers Numbered

Notice of Motion/Order to Show Cause/Petition/

Cross Motion and Affidavits(Affirmations)AnnexedNYSCEF 21-28

Opposing Affidavits (Affirmations)1

Reply Affidavits(Affirmations) [*2]

Affidavits(Affirmations)

Other Papers (Memoranda of Law)

Plaintiff moves to restore this action to the calendar pursuant to CPLR 3404.

Plaintiff commenced this action on April 4, 2011 by filing a Summons and Complaint. In the complaint, plaintiff sought to enforce a contract for the purchase of the commercial real estate, 401 Park Avenue, a/k/a Taaffe Place, Brooklyn ("Property"). According to the complaint, the contract at issue ("Contract") was signed by non-party Chaim Lax ("Lax"), as purchaser, and by the president of the defendant, as seller, on January 8, 2003. The closing was adjourned on multiple occasions and plaintiff alleges that Lax assigned his rights in the Contract to the Gama Trust on February 28, 2008. According to the complaint, on or about March 22, 2011, The Gama Trust appointed Zalman Skoblo as its nominee to commence this action as defendant has allegedly refused to complete the sale of the Property.

On August 13, 2013, plaintiff's counsel in the present action, Christopher Milito of Morrison Cohen, LLP, verified the petition in In re Prudence, LLC v L & M Naden Corp., et al. (Index No. 14626/2013) ("Prudence Petition"), a separate action which is also before this court. In the Prudence Petition, Mr. Milito sought to enforce the identical Contract as in the present action and stated:

On November 3, 2008, Chaim Lax passed away. Prior to his passing, Chaim Lax attempted to assign his right, title and interest in the Contract to the Gama Trust. That assignment was not effective, because the assignment was never accepted by the Gama Trust's trustee. As such, Chaim Lax's right, title and interest in the Contract devolved to his estate.

At a conference on September 18, 2013, counsel represented that they expected to submit a stipulation to discontinue the present action in favor of the Prudence Petition. At an appearance on October 9, 2013, this court adjourned the present matter to December 4, 2013. On December 4, 2013, neither attorney appeared at the conference in this action and the case was marked dismissed. Plaintiff now moves to restore this action to the calendar.

Plaintiff argues that the December 4, 2013 conference was adjourned pursuant to a stipulation ("Stipulation"), signed by both attorneys, that included the captions of both the present action and the Prudence Action. However, chambers did not receive a courtesy copy of the Stipulation prior to the December 4, 2013 appearance, as is required by this part's rules. It is noted that on December 9, 2013, subsequent to the dismissal of the action, the Stipulation was e-filed and on December 10, 2013, the Stipulation was filed with the Kings County motion support office. Plaintiff further argues that the present action was joined to the Prudence Action, which was administratively adjourned to January 8, 2014, and, accordingly, the court should have also adjourned the present action to January 8, 2014. Plaintiff argues that the court dismissed this action pursuant to CPLR 3404 and the court can only dismiss an action for abandonment one year after the case is marked off the calendar and where no note of issue has been filed. Plaintiff has not provided a transcript of this court's December 4, 2013 ruling.

In opposition to the motion, while defendant does not dispute that it signed the Stipulation, it contends that the action was not dismissed as abandoned pursuant to CPLR 3404, [*3]but dismissed pursuant to 22 NYCRR 202.27(c) which provides that if no party appears at a scheduled conference, the judge may note the default on the record and "may make such order as appears just." Further, defendant argues that plaintiff's counsel's position in the Prudence Petition directly contradicts the basis for the plaintiff's standing in the present action and counsel is bound by the verified statement.^[FN1] Defendant argues that plaintiff has not demonstrated that it was assigned the Contract prior to Lax's death and, therefore, there is no basis for the action and the court should deny the motion to restore. Plaintiff has never introduced any competent proof that plaintiff was assigned the Contract and that it has the right to recover. It is noted that on January 8, 2014, this court dismissed the Prudence Action due to the "lack of proof that petitioner has the right to recover . . .", without prejudice to seeking relief from Surrogate's Court.

Plaintiff did not provide this court with a stipulation to adjourn the conference two days prior to the December 4, 2013 conference as is required under this part's rules. Accordingly, upon the earlier representation that the action was to be discontinued, pursuant to 22 NYCRR 202.27(c), the action was dismissed when both parties failed to appear at the conference. In order to vacate the dismissal of an action pursuant to 22 NYCRR 202.27(c), the plaintiff is required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see Semenov v Semenov, 98 AD3d 962, 964 [2d Dept 2012] Lopez v Imperial Delivery Serv., 282 AD2d 190, 197 [2d Dept 2001] Mitchelltown Apts., Inc. v GMAC Commer. Mortg. Corp., 293 AD2d 340, 341 [1st Dept 2002]).

Although it is a reasonable excuse that plaintiff believed that the December 4, 2013 conference was adjourned, either due to the signed stipulation or the calendaring of the related Prudence Action for a different date, plaintiff has not demonstrated a meritorious cause of action. While plaintiff's counsel's verified pleading in the Prudence Action may only be considered an informal judicial admission (see Matter of Union Indem. Ins. Co. of NY, 89 NY2d 94, 103 [1996] GJF Constr., Inc. v Sirius Am. Ins. Co., 89 AD3d 622, 626 [1st Dept 2011] Roxborough Apts. Corp. v Kalish, 29 Misc 3d 41, 43 [App Term, 1st Dept 2010]), plaintiff has not contested the statement that the assignment of Lax's interest in the Contract was not accepted by Gama Trust's trustee. No competent affidavit has been supplied regarding plaintiff's claims herein, nor is there an affidavit by a principal of Prudence. As all of the allegations in the complaint stem from Gama's interest, plaintiff has not established that it has a meritorious cause of action (see Semenov, 98 AD3d at 964; Lopez, 282 AD2d at 197; Mitchelltown, 293 AD2d at 341). Accordingly, plaintiff's motion to restore the action is denied.

Further, it is noted that plaintiff's counsel appears to have a conflict of interest with his client since he sought the identical relief, on behalf of another client, in another action during the pendency of this action and made arguments that are completely contradictory to the plaintiff's position.

Accordingly, the plaintiff's motion is denied. [*4]

This constitutes the decision and order of the court.

E N T E R :

J.S.C.