| Bistre v Rongrant Assoc. |
| 2013 NY Slip Op 05788 [109 AD3d 778] |
| September 11, 2013 |
| Appellate Division, Second Department |
| Tanya Bistre et al., Respondents, v RongrantAssociates, Appellant. |
—[*1] Neimark & Neimark, LLP (Carol R. Finocchio, New York, N.Y., of counsel) and theCoffinas Law Firm, PLLC, New City, N.Y., for respondents (one brief filed).
In an action, inter alia, to recover damages for personal injuries, the defendantappeals from an order of the Supreme Court, Richmond County (McMahon, J.), enteredMarch 13, 2012, which granted that branch of the plaintiffs' motion which was, in effect,pursuant to CPLR 5015 (a) (1) to vacate an order of the same court entered June 18,2009, which had granted the defendant's unopposed motion to dismiss the action basedon the plaintiffs' failure to serve a complaint pursuant to CPLR 3012 (b), and thereuponreinstated the action.
Ordered that the order entered March 13, 2012, is reversed, on the law, with costs,and that branch of the plaintiffs' motion which was, in effect, pursuant to CPLR 5015 (a)(1) to vacate the order entered June 18, 2009, is denied.
To vacate their default in opposing the defendant's motion to dismiss this actionbased upon the plaintiffs' failure to serve a complaint pursuant to CPLR 3012 (b), theplaintiffs were required to demonstrate both a reasonable excuse for the default and apotentially meritorious cause of action (see CPLR 5015 [a] [1]; Sussman v Jo-Sta RealtyCorp., 99 AD3d 787 [2012]; Feldman v Delaney, 94 AD3d 1043, 1043 [2012]; Clover M. Barrett, P.C. vGordon, 90 AD3d 973 [2011]). Such motion must be "made within one yearafter service of a copy of the judgment or order with written notice of its entry upon themoving party" (CPLR 5015 [a] [1]).
Here, the plaintiffs' motion to vacate the prior order of the Supreme Court, which hadbeen entered June 18, 2009, and had granted the defendant's unopposed motion todismiss the instant action based on the plaintiffs' failure to serve a complaint pursuant toCPLR 3012 (b), was untimely since it was not made within one year of service uponthem of a copy of the order entered June 18, 2009, with notice of its entry (see Sussman v Jo-Sta RealtyCorp., 99 AD3d 787 [2012]). In any event, even if the motion had been timelymade, and we were to accept the plaintiffs' proffered excuse of law office failure as areasonable excuse for their default, the plaintiffs failed to demonstrate the existence of apotentially meritorious cause of action. In this action, the plaintiff Tanya Bistre(hereinafter the injured plaintiff) allegedly was struck by a motor vehicle in parking lotowned by [*2]the defendant. The plaintiffs sought toimpose liability upon the defendant based on allegations that the parking lot wasimproperly designed. While the plaintiffs submitted the affidavit of the injured plaintiff,that affidavit was insufficient to demonstrate the potential merit of a cause of actionagainst the defendant, as it contained only self-serving and conclusory allegationswithout any evidentiary support. Further, the plaintiffs failed to submit any affidavit froman expert establishing that the parking lot was improperly designed and that such designwas a proximate case of the injured plaintiff's injuries. The Court of Appeals has statedthat expert opinion evidence is required to demonstrate merit with respect to "matters[not] within the ordinary experience of laypersons" (Fiore v Galang, 64 NY2d999, 1001 [1985]; see Mosberg v Elahi, 80 NY2d 941, 942 [1992]). The claimspresented here required an expert affidavit to demonstrate a potentially meritorious causeof action (see Carroll v NostraRealty Corp., 54 AD3d 623 [2008]; Murray v New York City Health & Hosps. Corp., 52 AD3d792 [2008]; Clanton v Vagianellis, 192 AD2d 943, 944 [1993]; Cugini vSystem Lbr. Co., 111 AD2d 114 [1985]).
Accordingly, the Supreme Court erred in granting that branch of the plaintiffs'motion which was, in effect, pursuant to CPLR 5015 (a) (1) to vacate the order enteredJune 18, 2009. Angiolillo, J.P., Chambers, Sgroi and Cohen, JJ., concur.