Uddin v Mirza

2004 NYSlipOp 06756

September 27, 2004

Appellate Division, Second Department

As corrected through Wednesday, November 10, 2004

Mohammed Farruque Uddin, Appellant, v Mohammed Mirza, Respondent.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Huttner, J.), dated May 20, 2003, which denied his motion to vacate an order of the same court dated November 19, 2002, dismissing the action upon his default in proceeding to trial.

Ordered that the order is affirmed, with costs.

In order to vacate his default in proceeding to trial, the plaintiff was required to demonstrate a reasonable excuse for the default and a meritorious cause of action (see Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). The plaintiff failed, however, to submit any competent evidence establishing that he sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Itskovich v Lichenstadter, 2 AD3d 406 [2003]). Accordingly, he failed to establish a meritorious cause of action and the Supreme Court properly denied the motion. Smith, J.P., S. Miller, Adams, Rivera and Lifson, JJ., concur.