| Lugauer v Forest City Ratner Co. |
| 2007 NY Slip Op 07823 [44 AD3d 829] |
| October 16, 2007 |
| Appellate Division, Second Department |
| Michael Lugauer et al., Respondents, v Forest City RatnerCo. et al., Appellants. |
—[*1] Jeffrey S. Lisabeth, Mineola, N.Y. (Robert J. Cristiano of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Ruditzky, J.), dated December 11, 2006, whichgranted the plaintiffs' motion, inter alia, to vacate their default in timely filing a note of issue andto restore the case to the trial calendar, and denied their cross motion pursuant to CPLR 3216 todismiss the complaint for failure to prosecute.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, theplaintiffs' motion is denied, and the defendants' cross motion pursuant to CPLR 3126 to dismissthe complaint for failure to prosecute is granted.
In order to excuse their default and to restore this action to the calendar, the plaintiffs wererequired to demonstrate a justifiable excuse for their failure to timely file the note of issue and ameritorious claim (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89NY2d 499, 503 [1997]; Serby v Long Is.Jewish Med. Ctr., 34 AD3d 441 [2006]; Amato v Commack Union Free School Dist., 32 AD3d 807 [2006];Chaudhry v Ziomek, 21 AD3d922, 924 [2005]). Although the court has the discretion to accept law office failure as areasonable excuse (see CPLR 2005), a claim of law office failure should be supported bya "detailed and credible" explanation of the default at issue (see Henry v Kuveke, 9 AD3d 476, 479 [2004]; see also Gironda v Katzen, 19 AD3d644, 645 [2005]). The conclusory, undetailed, and uncorroborated claim of law office failureset forth by the plaintiffs in this case does not amount to a reasonable excuse (see Matter of ELRAC, Inc. v Holder,31 AD3d 636 [2006]; Matter ofDenton v City of [*2]Mount Vernon, 30 AD3d 600, 601[2006]; McClaren v Bell Atl., 30AD3d 569 [2006]; Solomon vRamlall, 18 AD3d 461 [2005]; Grezinsky v Mount Hebron Cemetery, 305AD2d 542 [2003]). Moreover, the conclusory allegations contained in the complaint and the billof particulars were an insufficient showing of a meritorious claim. Accordingly, the SupremeCourt improvidently exercised its discretion in granting the plaintiffs' motion, inter alia, to vacatetheir default in timely filing a note of issue and to restore the case to the trial calendar and indenying the defendants' cross motion pursuant to CPLR 3126 to dismiss the complaint for failureto prosecute. Rivera, J.P., Krausman, Carni and Balkin, JJ., concur.