| Donovan v Chiapetta |
| 2010 NY Slip Op 02915 [72 AD3d 635] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Antoinette Donovan, Appellant, v Nick Chiapetta,Respondent. |
—[*1] Harter Secrest & Emery LLP, Rochester, N.Y. (Richard E. Alexander of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Balter, J.), dated June 10, 2009, which denied her motion tovacate an order of the same court dated December 4, 2008, granting the defendant's unopposedmotion to dismiss the complaint for failure to comply with certain discovery demands.
Ordered that the order dated June 10, 2009, is affirmed, with costs.
In order to vacate her default in opposing the defendant's prior motion to dismiss thecomplaint, a plaintiff is generally required to demonstrate both a reasonable excuse for herdefault and a meritorious cause of action (see Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534[2006]; Fekete v Camp Skwere, 16AD3d 544, 545 [2005]; Amato vFast Repair, Inc., 15 AD3d 429, 430 [2005]; Costanza v Gold, 12 AD3d 551, 552 [2004]). The determination ofwhat constitutes a reasonable excuse lies within the court's discretion (see Santiago v New York City Health &Hosps. Corp., 10 AD3d 393, 394 [2004]; Roussodimou v Zafiriadis, 238 AD2d568, 569 [1997]; Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d526, 527 [1994]). The plaintiff failed to adequately explain her failure to oppose the defendant'sprior motion to dismiss the complaint, and the conclusory statements in the affidavit of hermedical expert were insufficient to demonstrate the existence of a meritorious cause of action.Mastro, J.P., Santucci, Dickerson, Belen and Austin, JJ., concur.