Tsikotis v. Pioneer Bldg. Corp.

• Decision Date: 20 June 2012
• Parties: Polvxeni TSIKOTIS, appellant, v. PIONEER BUILDING CORPORATION, et al., respondents.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 936
946 N.Y.S.2d 491
2012 N.Y. Slip Op. 04994

Polvxeni TSIKOTIS, appellant,
v.
PIONEER BUILDING CORPORATION, et al., respondents.

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

June 20, 2012.

Sacco & Fillas, LLP, Whitestone, N.Y. (Luigi Brandimarte of counsel), for appellant.

McGaw, Alventosa & Zajac, Jericho, N.Y. (James K. O'Sullivan of counsel), for respondents.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Brathwaite–Nelson, J.), entered June 22, 2011, which denied her motion pursuant to CPLR 5015 to vacate an order of the same court entered June 28, 2010, granting the unopposed motion of the defendants for summary judgment dismissing the complaint, and a judgment of the same court entered thereon on August 17, 2010, in favor of the defendants and against her dismissing the complaint.

ORDERED that the order entered June 22, 2011, is affirmed, with costs.

To vacate her default in opposing the defendants' motion for summary judgment dismissing the complaint, the plaintiff was required to demonstrate a reasonable excuse for her default and a potentially meritorious opposition to the motion ( seeCPLR 5015[a][1]; Roche v. City of New York, 88 A.D.3d 978, 979, 931 N.Y.S.2d 533;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). Under the circumstances of this case, the mere unsubstantiated assertion by the plaintiff's attorney that his office did not receive the defendants' motion papers was insufficient to rebut the properly executed affidavit of service attesting that the motion papers were properly mailed to the attorney's office address and the presumption of receipt arising from that proof ( see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55;Engel v. Lichterman, 62 N.Y.2d 943, 944–945, 479 N.Y.S.2d 188, 468 N.E.2d 26;Caprio v. 1025 Manhattan Ave. Corp., 63 A.D.3d 656, 657, 880 N.Y.S.2d 192;Diamond v. Vitucci, 36 A.D.3d 650, 828 N.Y.S.2d 214;Philippi v. Metropolitan Transp. Auth., 16 A.D.3d 654, 655, 791 N.Y.S.2d 444). As the plaintiff failed to demonstrate a reasonable excuse for the default, the plaintiff's motion to vacate the order entered June 28, 2010, and the judgment entered thereon was properly denied.

*492In reaching this determination, we have not considered matter dehors the record ( see Poupis v. Brown, 90 A.D.3d 881,...