| Garcia v Shaw |
| 2014 NY Slip Op 04732 [118 AD3d 943] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| Sherry Garcia, Appellant, v Kenneth J. Shaw,Jr., Respondent. |
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Sher, J.), dated May 29, 2013, which deniedher motion, in effect, to vacate an order of the same court entered February 18, 2010,granting the defendant's unopposed motion for summary judgment dismissing thecomplaint, and a judgment entered thereon, and thereupon to deny the defendant's motionfor summary judgment dismissing the complaint.
Ordered that the order dated May 29, 2013, is affirmed, with costs.
A party seeking to vacate an order entered upon his or her failure to oppose a motionmust demonstrate both a reasonable excuse for the default and a potentially meritoriousopposition to the motion (see CPLR 5015 [a] [1]; Santos v Penske Truck LeasingCo., 105 AD3d 1029 [2013]; Political Mktg., Int'l, Inc. v Jaliman, 67 AD3d 661,661-662 [2009]). "A motion to vacate a default is addressed to the sound discretion ofthe court" (Vujanic vPetrovic, 103 AD3d 791, 792 [2013]). Here, the Supreme Court did notimprovidently exercise its discretion in refusing to accept the plaintiff's explanation forfailing to oppose the defendant's motion (see Byers v Winthrop Univ. Hosp., 100 AD3d 817, 819[2012]; White v DaimlerChrysler Corp., 44 AD3d 651, 651-652 [2007]; cf. Simpson v Tommy HilfigerU.S.A., Inc., 48 AD3d 389, 392 [2008]). Accordingly, we need not address theissue of whether the plaintiff demonstrated a potentially meritorious opposition to themotion (see Silva v HoneydewCab Corp., 116 AD3d 691 [2014]). Skelos, J.P., Leventhal, Cohen, LaSalle andBarros, JJ., concur.