| Campbell-Jarvis v Alves |
| 2009 NY Slip Op 08986 [68 AD3d 701] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Melissa Campbell-Jarvis, Respondent, v Victoria Alves,Also Known as Victoria Brown. Appellant. |
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In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (McDonald, J.), dated September 5, 2008, which granted theplaintiff's motion to vacate an order of the same court dated March 20, 2008, granting thedefendant's motion to dismiss the action upon her default in opposing the motion.
Ordered that the order dated September 5, 2008 is reversed, on the law, with costs, theplaintiff's motion to vacate the order dated March 20, 2008 is denied, and the order dated March20, 2008 is reinstated.
In order to vacate her default in opposing the defendant's prior motion to dismiss, theplaintiff was required to demonstrate both a reasonable excuse for her default and a meritoriousopposition to the motion (see Simpson vTommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392 [2008]; Hospital for Joint Diseases v Dollar Rent ACar, 25 AD3d 534 [2006]; Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]; Amato v Fast Repair, Inc., 15 AD3d429, 430 [2005]; Costanza vGold, 12 AD3d 551, 552 [2004]). Although the determination of what constitutes areasonable excuse lies within the trial court's discretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d393, 394 [2004]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997];Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527 [1994]),and the court has the discretion to accept law office failure as a reasonable excuse (seeCPLR 2005), "a pattern of willful default and neglect" should not be excused (Roussodimouv Zafiriadis, 238 AD2d at 569 [internal quotation marks omitted]; see Santiago v New York City Health &Hosps. Corp., 10 AD3d 393 [2004]; Kolajo v City of New York, 248 AD2d 512[1998]; Vierya v Briggs & Stratton Corp., 166 AD2d 645, 645-646 [1990]; Chery vAnthony, 156 AD2d 414, 417 [1989]), and the claim of law office failure should besupported by a "detailed and credible" explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476,479 [2004]; see Gironda v Katzen,19 AD3d 644, 645 [2005]).
In this case, the plaintiff's attorney's conclusory, undetailed, and uncorroborated claim of lawoffice failure did not amount to a reasonable excuse (see Forward Door of N.Y., Inc. v Forlader, 41 AD3d 535 [2007];Piton v Cribb, 38 AD3d 741[2007]; Matter of ELRAC, Inc. vHolder, 31 AD3d 636 [2006]). In addition, the plaintiff failed to submit an affidavit ofmerit. Accordingly, the Supreme Court abused its discretion in granting the plaintiff's motion tovacate an order which granted the defendant's motion to dismiss the action upon her default inopposing the motion. Dillon, J.P., Miller, Eng, Hall and Sgroi, JJ., concur.