Puzzo v. Ayoub

• Decision Date: 02 March 2016
• Citation: 137 A.D.3d 770,25 N.Y.S.3d 670
• Parties: David PUZZO, et al., appellants, v. Edward AYOUB, et al., respondents.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 770
25 N.Y.S.3d 670

David PUZZO, et al., appellants,
v.
Edward AYOUB, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 2, 2016.

25 N.Y.S.3d 671

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants.

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for respondents.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Siegal, J.), entered January 16, 2015, which denied their motion pursuant to CPLR 5015(a) to vacate an order of the same court entered January 9, 2014, granting the defendants' unopposed motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

To succeed in vacating an order made upon a plaintiff's failure to oppose a motion, the plaintiff is required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Hogan v. Schwartz, 119 A.D.3d 650, 651, 990 N.Y.S.2d 67 ; Garcia v. Shaw, 118 A.D.3d 943, 988 N.Y.S.2d 674 ; Silva v. Honeydew Cab Corp., 116 A.D.3d 691, 983 N.Y.S.2d 298 ).

Here, the plaintiffs sought an adjournment of the defendants' motion for summary judgment dismissing the complaint to give their attorneys time to determine whether an expert affidavit was necessary to oppose the motion. The adjournment was denied. The Supreme Court did not improvidently exercise its discretion in finding that this was not a reasonable excuse for their failure to submit opposition papers on the return date of the motion (see Newell v. Hirsch, 65 A.D.3d 1108, 1109, 885 N.Y.S.2d 130 ; Nowell v. NYU Med. Ctr., 55 A.D.3d 573, 574, 865 N.Y.S.2d 309 ; Chiarello v. Alessandro, 38 A.D.3d 823, 824, 832 N.Y.S.2d 634 ; cf. Galgano v. Fleckner, 128 A.D.3d 769, 770, 9 N.Y.S.3d 347 ). Since the plaintiffs failed to demonstrate a reasonable excuse for their default,...