| Morales v Perfect Dental, P.C. |
| 2010 NY Slip Op 04155 [73 AD3d 877] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Margarita Morales, Appellant, v Perfect Dental, P.C., etal., Respondents. |
—[*1] Composto & Composto, Brooklyn, N.Y. (Frank A. Composto and Judith Elsherbini ofcounsel), for respondent Perfect Dental, P.C. White & McSpedon, P.C., New York, N.Y. (Tracey Lyn Jarzombek of counsel), forrespondent Gan Enterprises, LLC.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Kings County (Knipel, J.), dated December 3, 2008, which granted,without opposition, the respective motions of the defendant Perfect Dental, P.C., and thedefendant Gan Enterprises, LLC, for summary judgment dismissing the complaint insofar asasserted against them, (2) a judgment of the same court entered January 21, 2009, which, uponthe order, dismissed the complaint, and (3) an order of the same court dated July 13, 2009, whichdenied the plaintiff's motion, in effect, to vacate the order dated December 3, 2008.
Ordered that the appeals from the order dated December 3, 2008, and the judgment aredismissed; and it is further,
Ordered that the order dated July 13, 2009, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeals from the order dated December 3, 2008, and the judgment entered January 21,2009, must be dismissed because no appeal lies from an order or judgment entered upon thedefault of the appealing party (see CPLR 5511; Development Strategies Co., LLC, Profit Sharing Plan v Astoria Equities,Inc., 71 AD3d 628 [2010]; D'Agostino Law Off., P.C. v Parlante, 58 AD3d 668 [2009]).
In order to prevail on a motion to vacate a default in opposing a motion for summaryjudgment, a plaintiff is required to demonstrate both a reasonable excuse for its default and ameritorious cause of action (see CPLR 5015 [a]; Chiarello v Alessandro, 38 AD3d 823, 824 [2007]; Rockland Tr. Mix, [*2]Inc. v Rockland Enters., Inc., 28 AD3d 630 [2006]). Thedetermination of what constitutes a reasonable excuse for a default lies within the sounddiscretion of the Supreme Court (seeStar Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904 [2008]; Antoine v Bee, 26 AD3d 306[2006]; Matter of Hye-Young Chon vCountry-Wide Ins. Co., 22 AD3d 849 [2005]). The Supreme Court did notimprovidently exercise its discretion in rejecting the plaintiff's explanation for her default. Underthe circumstances of this case, the plaintiff's proffered excuse of law office failure did notconstitute a reasonable excuse for her default (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783,784 [2008]; Chiarello v Alessandro, 38 AD3d at 824; Matter of Hye-Young Chon vCountry-Wide Ins. Co., 22 AD3d at 849). While law office failure can be accepted as areasonable excuse in the exercise of the court's sound discretion, the movant must submitsupporting facts to explain and justify the default, and mere neglect is not accepted as areasonable excuse (see Morrison v Rosenberg, 278 AD2d 392 [2000]; Cole-Hatchardv Grand Union, 270 AD2d 447 [2000]; De Vito v Marine Midland Bank, 100 AD2d530, 531 [1984]). Moreover, the plaintiff also failed to demonstrate a meritorious cause of action(see Chiarello v Alessandro, 38 AD3d at 824).
Accordingly, the Supreme Court properly denied the plaintiff's motion, in effect, to vacatethe order dated December 3, 2008. Skelos, J.P., Santucci, Leventhal and Hall, JJ., concur.