Roche v. City of N.Y.

• Decision Date: 25 October 2011
• Citation: 931 N.Y.S.2d 533,88 A.D.3d 978,2011 N.Y. Slip Op. 07621
• Parties: Edzer ROCHE, appellant,v.CITY OF NEW YORK, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 978

931 N.Y.S.2d 533

2011 N.Y. Slip Op. 07621

Edzer ROCHE, appellant,

v.CITY OF NEW YORK, et al., respondents, et al., defendants.

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

Oct. 25, 2011.

OPINION TEXT STARTS HEREWhite, Cirrito & Nally, LLP, Hempstead, N.Y. (James P. Nally of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Karen M. Griffin of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), dated August 16, 2010, which denied his motion to vacate an order of the same court dated April 1, 2010, granting the motion of the defendants City of New York and New York City Department of Corrections for summary judgment dismissing the complaint insofar as asserted against them, upon his default in opposing the motion.

ORDERED that the order dated August 16, 2010, is affirmed, with costs.

In order to vacate his default in opposing the municipal defendants' motion for summary judgment, the plaintiff was required to demonstrate both a reasonable excuse for his default and a potentially meritorious opposition to the motion ( see CPLR 5015[a][1]; Casali v. Cyran, 84 A.D.3d 711, 921 N.Y.S.2d 879; Simpson v. Tommy Hilfiger, U.S.A., Inc., 48 A.D.3d 389, 392, 850 N.Y.S.2d 629). Although the plaintiff's claim of law office failure can be deemed a reasonable excuse ( see Kohn v. Kohn, 86 A.D.3d 630, 928 N.Y.S.2d 55; Winthrop Univ. Hosp. v. Metropolitan Suburban Bus Auth., 78 A.D.3d 685, 686, 910 N.Y.S.2d 159), he did not demonstrate the existence of a potentially meritorious opposition to the municipal defendants' motion, since the record demonstrates that there is no triable issue of fact as to whether a special relationship existed between the plaintiff and the municipal defendants under the circumstances presented ( see Greene v. New York City Hous. Auth., 283 A.D.2d 458, 459, 724 N.Y.S.2d 631; see also Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937; Brown v. City of New York, 73 A.D.3d 1113, 902 N.Y.S.2d 594; Feinsilver v. City of New York, 277 A.D.2d 199, 715 N.Y.S.2d 441; Montague v. City of New York, 194 A.D.2d 524, 598 N.Y.S.2d 314).

DILLON, J.P., BALKIN, ENG and COHEN, JJ., concur.