Recitation:

The following papers numbered 1-3 were read and considered by the Court on claimant's application to restore Claim No. 120728:

Notice of Motion, Claimant's Supporting Affidavit and Exhibits, Affirmation [*2]of Counsel......................................................................................................................1

Affirmation in Opposition and Exhibits.....................................................................2

Claimant's Reply.......................................................................................................3

Text of the decision:

On August 21, 2012, defendant moved to dismiss Claim No. 120728 due to the failure of claimants' counsel to appear in Court for a scheduled conference. The Court granted defendant's motion and dismissed the claim pursuant to the rules of the Court of Claims, Section 206.10, by order filed stamped October 4, 2012. The order was served with notice of entry on November 7, 2012 (Defendant's Ex. E). More than six months later, one of the claimants, Kevin Martin, brought this motion ^[FN1] pro se. Claimants' counsel also submitted an affirmation in support of the pro se motion.^[FN2]

Claimant's counsel affirmed that he failed to appear in the Court of Claims because he had several other matters scheduled in another court on that date. While counsel acknowledges that his failure to "advise this court of the conflict and seek an adjournment or have an attorney appear" (Counsel's Aff., ¶ 7) resulted in the dismissal of the claim, his affirmation is glaringly vacuous as to any attempt to offer an explanation for his blatant disregard of this Court's mandate that "failure to appear at the conference will be considered a calendar default" (Defendant's Ex. C). It is further noted that counsel had been apprised of the scheduled court date more than two months prior to the conference; nonetheless counsel never made any attempt to contact the Court regarding his scheduling conflict.

Under these particular circumstances, this Court does not accept counsel's failure to appear without any attempt to contact the Court either in writing, by telephone or otherwise, to constitute a reasonable excuse of law office failure (cf. Matter of Esposito, 57 AD3d 894 [2d Dept 2008] [reasonable excuse of law office failure found in a sufficiently detailed affirmation of attorney explained downsizing of firm and recent departure of calendaring secretary]; Goldstein v Meadows Redevelopment Co Owners Corp. I, 46 AD3d 509 [2d Dept 2007] [detailed affirmation of attorney regarding law office failure attributable to attorney's two hospitalizations occasioned by illness and personal problems was acceptable excuse for default]).

In the absence of a reasonable excuse, it is unnecessary to consider whether claimant has demonstrated the existence of a potentially meritorious claim (see Trepel v Greenman-Pedersen, Inc., [*3]99 AD3d 789 [2d Dept 2012]). In any event, claimant has failed to demonstrate that his allegations of negligence regarding a pothole on the Cross County Parkway are potentially meritorious (see Thomas v Avalon Gardens Rehabilitation & Health Care Ctr., 107 AD3d 694 [2d Dept 2013] [only generalized and conclusory allegations without any evidentiary support was insufficient to establish a potentially meritorious cause of action]).

Accordingly, claimant's motion to restore Claim No. 120728 is DENIED.

Appendices: