| New York Nightlife, LLC v Wagner Davis P.C. |
| 2012 NY Slip Op 01121 [92 AD3d 513] |
| February 14, 2012 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| New York Nightlife, LLC, Appellant, v Wagner Davis P.C., Defendant, and Brian Owens, Respondent. |
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Law Offices of Mangan Ginsberg LLP, New York (Michael P. Mangan of counsel), for
respondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered January 26, 2010, which denied plaintiff's motion to vacate the dismissal of the action for failure to proceed to trial, unanimously affirmed, without costs.
In this contract action, plaintiff's principal, a Russian citizen with a residence in New York, who had been subpoenaed by defendants, failed to appear for trial and the court dismissed the action (see CPLR 3215 [a]; 22 NYCRR 202.27). Even assuming that a reasonable excuse for the principal's failure to appear was provided, based on his unsubstantiated need to return to Russia to secure an extension of his visa, plaintiff failed to show that it has a meritorious cause of action (Biton v Turco, 88 AD3d 519 [2011]; Carroll v Nostra Realty Corp., 54 AD3d 623 [2008], lv dismissed 12 NY3d 792 [2009]). Thus, the court providently exercised its discretion in denying the motion to vacate the default. Concur—Mazzarelli, J.P., Saxe, Moskowitz, Freedman and Manzanet-Daniels, JJ.