Adefioye v. Volunteers of America, Inc.

• Decision Date: 12 December 1995
• Citation: 634 N.Y.S.2d 696,222 A.D.2d 246
• Parties: Julius ADEFIOYE, Jr., etc., et al., Plaintiffs-Appellants, v. VOLUNTEERS OF AMERICA, INC., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 696

634 N.Y.S.2d 696

222 A.D.2d 246

Julius ADEFIOYE, Jr., etc., et al., Plaintiffs-Appellants, v. VOLUNTEERS OF AMERICA, INC., Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Dec. 12, 1995.

S.J. Tashman, for plaintiffs-appellants.

P.D. Lawless, for defendant-respondent.

Before MURPHY, P.J., and ELLERIN, KUPFERMAN, ASCH and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Stephen Crane, J.), entered May 20, 1994, which denied plaintiffs' motion to vacate an order which had granted, upon default, defendant's motion to strike the complaint for failure to provide a bill of particulars and responses to discovery demands, unanimously affirmed, without costs.

The within wrongful death action arises from the death of a 16-year-old boy in a hit and run automobile accident on Ward's Island on the evening of April 7, 1990 and seeks to hold defendant Volunteers of America ["VOA"] liable on the theory that, having specifically undertaken to contact emergency assistance personnel, they negligently failed to carry out that obligation, thereby causing a delay in medical care which resulted in the boy's death. At issue on this appeal is whether plaintiffs have made a sufficient showing to vacate an order which had granted, upon their default, a motion to strike the complaint.

A plaintiff seeking to vacate a default must not only show that there was a reasonable excuse for the default but must demonstrate that he or she has a meritorious cause of action by submitting an affidavit of merit by someone with personal knowledge of the facts (Salamak v. Kay Lincoln Mercury, 102 A.D.2d 820, 476 N.Y.S.2d 362; McNamara v. Hutchinson, 33 A.D.2d 26, 304 N.Y.S.2d 790; Cronin v. City of New York, 18 A.D.2d 995, 238 N.Y.S.2d 734). Here, while we find plaintiffs' counsel's demonstration of law office failure adequate to excuse the default in responding to the motion to strike the complaint, vacatur is nevertheless unjustified as plaintiffs have failed to submit evidence indicating that they have a meritorious cause of action.

The only evidence submitted by plaintiffs concerning the actual events surrounding their claim is an affidavit submitted by decedent's mother. Therein, she states that she was told by her son's companion that, immediately after the accident, he had run across the footbridge located near the scene of the accident to use the emergency phone located there. After contacting the Emergency Medical Service (EMS), he was put on hold, so he hung up and ran back across the footbridge to the VOA shelter on the island to obtain help. There he ran into a woman who, after arguing with him and resisting his attempts to persuade her that he was in...