Roche v City of New York

2011 NY Slip Op 07621 [88 AD3d 978]

October 25, 2011

Appellate Division, Second Department

As corrected through Wednesday, December 7, 2011

Edzer Roche, Appellant, v City of New York et al.,Respondents, et al., Defendants.

—[*1]White, Cirrito & Nally, LLP, Hempstead, N.Y. (James P. Nally of counsel), forappellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and KarenM. Griffin of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Flug, J.), dated August 16, 2010, which denied his motionto vacate an order of the same court dated April 1, 2010, granting the motion of the defendantsCity of New York and New York City Department of Corrections for summary judgmentdismissing the complaint insofar as asserted against them, upon his default in opposing themotion.

Ordered that the order dated August 16, 2010, is affirmed, with costs.

In order to vacate his default in opposing the municipal defendants' motion for summaryjudgment, the plaintiff was required to demonstrate both a reasonable excuse for his default and apotentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Casali v Cyran, 84 AD3d 711[2011]; Simpson v Tommy HilfigerU.S.A., Inc., 48 AD3d 389, 392 [2008]). Although the plaintiff's claim of law officefailure can be deemed a reasonable excuse (see Kohn v Kohn, 86 AD3d 630 [2011]; Winthrop Univ. Hosp. v MetropolitanSuburban Bus Auth., 78 AD3d 685, 686 [2010]), he did not demonstrate the existenceof a potentially meritorious opposition to the municipal defendants' motion, since the recorddemonstrates that there is no triable issue of fact as to whether a special relationship existedbetween the plaintiff and the municipal defendants under the circumstances presented (seeGreene v New York City Hous. Auth., 283 AD2d 458, 459 [2001]; see also Cuffy v Cityof New York, 69 NY2d 255, 260 [1987]; Brown v City of New York, 73 AD3d 1113 [2010]; Feinsilver vCity of New York, 277 AD2d 199 [2000]; Montague v City of New York, 194 AD2d524 [1993]). Dillon, J.P., Balkin, Eng and Cohen, JJ., concur.