| Strunk v Revenge Cab Corp. |
| 2012 NY Slip Op 06205 [98 AD3d 1029] |
| September 19, 2012 |
| Appellate Division, Second Department |
| Kerry Strunk, Appellant, v Revenge Cab Corp. et al.,Respondents. |
—[*1] Skenderis & Cornacchia, P.C., Long Island City, N.Y. (Louis T. Cornacchia III and JenniferL. Cook of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Taylor, J.), entered November 18, 2010, which denied hermotion pursuant to CPLR 5015 (a) to vacate a prior order of the same court dated February 19,2010, granting the defendants' motion for summary judgment dismissing the complaint on theground that she did not sustain a serious injury within the meaning of Insurance Law §5102 (d), upon her default in opposing the motion.
Ordered that the order entered November 18, 2010 is affirmed, with costs.
As argued by the plaintiff, and conceded by the defendants, the Supreme Court erred indenying the plaintiff's motion pursuant to CPLR 5015 (a) to vacate a prior order dated February19, 2010, granting the defendants' motion for summary judgment dismissing the complaint uponthe plaintiff's default in opposing the motion, on the procedural ground that the plaintiff's motionshould have been made by order to show cause and not by notice of motion. However, uponreviewing the merits of the plaintiff's motion in the interest of judicial economy, we neverthelessaffirm the order on different grounds.
To vacate her default in opposing the defendants' motion for summary judgment dismissingthe complaint, the plaintiff was required to demonstrate both a reasonable excuse for her defaultand a potentially meritorious opposition (see Kohn v Kohn, 86 AD3d 630, 630 [2011]; Remote Meter Tech. of NY, Inc. v ArisRealty Corp., 83 AD3d 1030, 1032 [2011]; Bazoyah v Herschitz, 79 AD3d 1081, 1081 [2010]). A motion tovacate a default is addressed to the sound discretion of the court (see Kohn v Kohn, 86AD3d at 630; Dimitriadis v VisitingNurse Serv. of N.Y., 84 AD3d 1150, 1150 [2011]). The court "has the discretion toaccept law office failure as a reasonable excuse (see CPLR 2005), where the claim of lawoffice failure is supported by a 'detailed and credible' explanation of the default" (Kohn vKohn, 86 AD3d at 630; see Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83AD3d at 1032; Winthrop Univ. Hosp. vMetropolitan Suburban Bus Auth., 78 AD3d 685, 686 [2010]). Mere neglect is notaccepted as a reasonable excuse (seeMorales v Perfect Dental, P.C., 73 AD3d 877, 878 [2010]). Here, the plaintiff did notadequately detail and substantiate the alleged law office failure which resulted in [*2]her failure to serve her opposition papers on the defendantspursuant to the parties' stipulation dated October 9, 2009. Thus, the plaintiff failed to demonstratea reasonable excuse for her default in opposing the motion (see Ogunmoyin v 1515 Broadway Fee Owner, LLC, 85 AD3d 991,992 [2011]). Accordingly, she was not entitled to vacatur of the order dated February 19, 2010,granting the defendants' motion for summary judgment dismissing the complaint, upon herdefault in opposing the motion. Skelos, J.P., Dickerson, Hall and Roman, JJ., concur.