| Bhuiyan v New York City Health & Hosps.Corp. |
| 2014 NY Slip Op 06164 [120 AD3d 1284] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Ishat Bhuiyan, an Infant, by Her Mother and NaturalGuardian, Rehana Bhuiyan, et al., Appellants, v New York City Health &Hospitals Corporation, Respondent. |
John J. Ciafone, Astoria, N.Y., for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Kathy Chang Park of counsel; Michael Moradi on the brief), for respondent.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffsappeal from an order of the Supreme Court, Kings County (Knipel, J.), dated April 19,2013, which denied their motion, in effect, to vacate an order of the same court datedJuly 20, 2012, granting the defendant's unopposed motion pursuant CPLR 3126 todismiss the complaint.
Ordered that the order dated April 19, 2013 is affirmed, with costs.
A party seeking to vacate an order entered upon his or her failure to oppose a motionis required to demonstrate, through the submission of supporting facts in evidentiaryform, both a reasonable excuse for the default and the existence of a potentiallymeritorious opposition to the motion (see Garcia v Shaw, 118 AD3d 943 [2014]; Karamuco v Cohen, 90 AD3d998 [2011]; Thapt vLutheran Med. Ctr., 89 AD3d 837 [2011]; Donovan v Chiapetta, 72 AD3d 635, 636 [2010]). "Thedetermination of what constitutes a reasonable excuse lies within the Supreme Court'sdiscretion, and the Supreme Court has the discretion to accept law office failure as areasonable excuse where that claim is supported by a detailed and credible explanation ofthe default or defaults at issue" (Swensen v MV Transp., Inc., 89 AD3d 924, 925 [2011][internal quotation marks and citations omitted]).
Here, the Supreme Court providently determined that the plaintiffs failed to present areasonable excuse for their failure to submit opposition papers. Contrary to the plaintiffs'contentions, the defendant appropriately served its motion upon the pro se plaintiffspursuant to CPLR 2103 (c) when the plaintiffs had not yet retained counsel.
Accordingly, we need not address the issue of whether the plaintiffs demonstrated apotentially meritorious opposition to the motion (see Garcia v Shaw, 118 AD3dat 943; Silva v Honeydew CabCorp., 116 AD3d 691, 692 [2014]). Rivera, J.P., Sgroi, Cohen and Barros, JJ.,concur.