| Casali v Cyran |
| 2011 NY Slip Op 03791 [84 AD3d 711] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Frank Casali, Appellant, v Daniel J. Cyran, Respondent, etal., Defendant. |
—[*1] Vardaro & Helwig, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., and Terence S.Reynolds of counsel), for respondent.
In an action to recover damages for medical malpractice, the plaintiff appeals from an orderof the Supreme Court, Nassau County (Feinman, J.), entered October 16, 2009, which denied hismotion to vacate an order of the same court entered August 28, 2009, upon his default, grantingthe motion of the defendant Daniel J. Cyran for summary judgment dismissing the complaintinsofar as asserted against that defendant.
Ordered that the order entered October 16, 2009, is affirmed, with costs.
To vacate his default, the plaintiff was required to demonstrate a reasonable excuse for thedefault and potentially meritorious opposition to the motion (see CPLR 5015 [a]; Legaretta v Ekhstor, 74 AD3d 899[2010]; Rivera v Komor, 69 AD3d833 [2010]; Nowell v NYU Med.Ctr., 55 AD3d 573 [2008]). The plaintiff's excuse for failing to oppose the motion ofdefendant Daniel J. Cyran for summary judgment dismissing the compliant insofar as assertedagainst Cyran can only be classified as law office failure. Although the Supreme Court has thediscretion to excuse a default resulting from law office failure (see CPLR 2005), here, theplaintiff's attorney, in his affirmation, admitted that there was "no excuse, reasonable orotherwise." Additionally, the plaintiff failed to establish that he had potentially meritoriousopposition to the motion (see Bollino vHitzig, 34 AD3d 711 [2006]). Accordingly, the Supreme Court properly denied theplaintiff's motion to vacate the prior order granting Cyran's motion for summary judgmentdismissing the complaint insofar as asserted against Cyran. Rivera, J.P., Dickerson, Hall andCohen, JJ., concur.