| Legaretta v Ekhstor |
| 2010 NY Slip Op 04960 [74 AD3d 899] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Auristella Legaretta et al., Appellants, v Lucky Ekhstor etal., Respondents. (And a Third-Party Action.) |
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In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofSupreme Court, Queens County (Nelson, J.), dated May 15, 2009, which denied their motion, ineffect, to vacate so much of a prior order of the same court dated March 28, 2008, as granted,without opposition, that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted by the plaintiffs Edward Hernandez and Eva M.Lamota on the ground that those plaintiffs did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order dated May 15, 2009, is affirmed, with costs to the respondents.
To vacate their default in opposing the defendants' motion for summary judgment, theplaintiffs were required to demonstrate both a reasonable excuse for their default and apotentially meritorious claim (seeDonovan v Chiapetta, 72 AD3d 635 [2010]; Aurora Loan Servs. v Grant, 70 AD3d 986 [2010]). Thedetermination of what constitutes a reasonable excuse lies within the trial court's discretion (see Zarzuela v Castanos, 71 AD3d880 [2010]; Santiago v New YorkCity Health & Hosps. Corp., 10 AD3d 393, 394 [2004]). Under the circumstances ofthis case, the plaintiffs' claim of law office failure was insufficient to excuse their failure tooppose the defendants' motion for summary judgment. Rivera, J.P., Florio, Dickerson, Chambersand Lott, JJ., concur.