Author: DMG

The Supreme Court did not improvidently exercise its discretion in granting that [*2]branch
of the plaintiffs' motion which was to vacate the dismissal of the
action pursuant to CPLR 3216, and restore the action to the trial
calendar. CPLR 3216 is an "extremely forgiving statute" which "never
requires, but merely authorizes, the Supreme Court to dismiss a
plaintiff's action based on the plaintiff's unreasonable neglect to
proceed" (Davis v Goodsell, 6 AD3d 382, 383; see Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633; Primiano v Ginsberg, 55 AD3d 709; Zito v Jastremski, 35 AD3d 458; Ferrara v N.Y. & Atl. Ry. Co., 25 AD3d 753,
754). The statute prohibits the Supreme Court from dismissing a
complaint based on failure to prosecute whenever the plaintiff has
shown a justifiable excuse for the delay and the existence of a
meritorious cause of action (see CPLR 3216[e]; Di Simone v Good Samaritan Hosp., 100 NY2d at 633; Zito v Jastremski, 35 AD3d at 459; Goldblum v Franklin Munson Fire Dist., 27 AD3d 694).

Here, the plaintiffs moved to vacate the order dismissing the
action approximately two months after it had been issued, explaining
that they had been unable to file a timely note of issue because the
defendants' response to several significant discovery demands was still
outstanding. Moreover, the plaintiffs submitted, inter alia, their
deposition testimony to establish the existence of a meritorious cause
of action, and it is clear from the record that they exhibited no
intent to abandon the action. Under these circumstances, the court
properly vacated the dismissal of the action, and restored it to the
trial calendar (see Lubov v Welikson, 36 AD3d 673, 674; Zito v Jastremski, 35 AD3d at 459; Diaz v Yuan, 28 AD3d 603; Tolmasova v Umarova, 22 AD3d 570; Goldblum v Franklin Munson Fire Dist., 27 AD3d 694, 695; Ferrara v N.Y. & Atl. Ry. Co., 25 AD3d at 754-755; Davis v Goodsell, 6 AD3d at 384).

Inasmuch as ARG's cross motion for summary judgment was made more than 120 days after
the note of issue was filed, it was untimely (see CPLR 3212 [a]; Miceli v State Farm Mut. Auto. Ins.
Co., 3 NY3d 725, 726-727 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]). Since no
good cause was articulated by ARG for its late filing, its cross motion for summary judgment
was properly denied as untimely (id.; see Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 743 [2007]; Jones v Ricciardelli, 40 AD3d 936
[2007]). Moreover, since the grounds upon which ARG premised its cross motion were not
nearly identical to those upon which Long Island Paneling relied in connection with its motion
(see Bickelman v Herrill Bowling
Corp., 49 AD3d 578, 580 [2008]; cf. Grande v Peteroy, 39 AD3d 590, 591-592 [2007]), there is no
basis upon which we may impute good cause for ARG's delay in submitting its cross motion.

Where, as here, evidentiary material has been considered in support
of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the
court must determine whether the proponent of the pleading has a cause
of action, not whether the proponent has stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Steiner v Lazzaro & Gregory, 271 AD2d 596, 597; Meyer v Guinta, 262
AD2d 463, 464). "If the documentary proof disproves an essential
allegation of the complaint, dismissal pursuant to CPLR 3211(a)(7) is
warranted even if the allegations, standing alone, could withstand a
motion to dismiss for failure to state a cause of action" (Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530).

In the present case, the documentary evidence submitted by the
defendant Iron Mountain Information Management, Inc. (hereinafter Iron
Mountain), established that the Administration Agreement entered into
between it and the plaintiff had expired pursuant to its terms in
November 2006. Thus, the Supreme Court properly granted that branch of
Iron Mountain's motion which was to dismiss the third cause of action
alleging, in effect, that Iron Mountain breached the Administration
Agreement in and after December 2006. Moreover, the Supreme Court also
properly granted that branch of Iron Mountain's motion which was to
dismiss the fourth cause of action alleging, in effect, tortious
interference with contract, as the documentary evidence established
that no enforceable contract was in effect during the period relevant
to the allegations in the fourth cause of action (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 424; Long Is. Pen Corp. v Shatsky Metal Stamping Co., 94 AD2d 788, 789; Winer v Glaser, 3 AD2d 656, 657).

In addition, the Supreme Court correctly granted that branch of
the motion of the defendant 1165 Northern, LLC (hereinafter Northern),
which was to dismiss the fifth cause of action alleging breach of
contract based, inter alia, on Northern's alleged failure to negotiate
the terms of fair market rent with the plaintiff in good faith. The
documentary evidence conclusively established that Northern's
obligation to negotiate fair market rent was never triggered in light
of the plaintiff's
failure to exercise its option to renew in accordance with the terms of the lease (see Leon v Martinez, 84 NY2d at 88).

To vacate their default in appearing at the trial and inquest, the defendants were [*2]required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015[a][1]; Vasquez v New York City Hous. Auth., 51 AD3d 781, 782; Conserve Elec., Inc. v Tulger Contr. Corp., 36 AD3d 747; Zeltser v Sacerdote, 24 AD3d 541).
Although determining what constitutes a reasonable excuse generally
lies within the sound discretion of the Supreme Court, reversal is
warranted if that discretion is improvidently exercised (see McHenry v Miguel, 54 AD3d 912, 913; Ahmad v Aniolowiski, 28 AD3d 692, 693; Matter of Zrake v New York City Dept. of Education, 17 AD3d 603).

The Supreme Court improvidently exercised its discretion in
denying that branch of the defendants' motion which was to vacate their
default in appearing at the trial on January 25, 2008, and at the
inquest on the issue of damages held on the same date. The defendants
presented a reasonable excuse for their default based upon their
principal's inability, due to the terminal illness and death of his
wife, to retain new trial counsel after former counsel was relieved (see Du Jour v DeJean, 247 AD2d 370, 371; Matter of McCaffrey v McCaffrey, 210 AD2d 409; State Div. of Human Rights v North Broadway Holding Corp., 38 AD2d 856). Moreover, the defendants' submissions were sufficient to demonstrate the existence of meritorious defenses (see Rocovich v Consolidated Edison Co., 78 NY2d 509; Dooley v Peerless Importers, Inc., 42 AD3d 199; Magnuson v Syosset Community Hosp., 283 AD2d 404).

Furthermore, the Supreme Court erred in denying that branch of
the defendants' motion which was to vacate the prior order dated
January 23, 2008, granting, upon reargument, the third-party
defendant's unopposed motion for summary judgment dismissing the fourth
cause of action in the third-party complaint. Absence of proper service
of a motion is a sufficient and complete excuse for a default on a
motion and deprives the court of jurisdiction to entertain the motion (see Daulat v Helms Bros., Inc., 32 AD3d 410, 411; Bianco v LiGreci, 298 AD2d 482; Welch v State of New York,
261 AD2d 537, 538). The defendants and the third-party defendant
submitted conflicting evidence with respect to the issue of whether the
third-party defendant's motion for leave to reargue was properly served
upon the defendants (see CPLR 2103[b][2], [c], [f][1]; Welch v State of New York, 261 AD2d at 538). Accordingly, a hearing and a new determination are necessary (see Daulat v Helms Bros., Inc., 32 AD3d at 411; LPN Consulting Corp. v Hamm, 202 AD2d 479; Sport-O-Rama Health & Fitness Ctr. v Centennial Leasing Corp., 100 AD2d 584, 585).