| Dobbyn-Blackmore v City of New York |
| 2014 NY Slip Op 09100 [123 AD3d 1083] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| Ellen Dobbyn-Blackmore et al., Plaintiffs/Third-PartyPlaintiffs-Appellants, v City of New York et al., Respondents. 6401 4th Ave.Corp., Third-Party Defendant-Respondent. |
The Behrins Law Firm, PLLC, Staten Island, N.Y. (Jonathan B. Behrins of counsel),for plaintiffs/third-party plaintiffs-appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andMichael J. Pastor of counsel), for defendant-respondent City of New York.
Edward Garfinkel (McGaw Alventosa & Zajac, Jericho, N.Y. [Ross P. Masler],of counsel), for defendant-respondent DeFoe Corp.
Marin Goodman, LLP, Harrison, N.Y. (Russell S. Jamison of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Kings County (Velasquez, J.), dated January 16, 2013,which denied their motion, denominated as one pursuant to CPLR 2221 (e) for leave torenew or, in the alternative, pursuant to CPLR 2221 (d) for leave to reargue, their prioropposition to the separate motions of the defendants and the third-party defendantpursuant to CPLR 3126 to strike the complaint and third-party complaint for failure tocomply with a certain discovery order, but which was, in actuality, one pursuant to CPLR5015 (a) (1) to vacate an order of the same court dated March 2, 2012, granting theunopposed separate motions of the defendants and third-party defendant pursuant toCPLR 3126 to strike the complaint and third-party complaint for failure to comply with acertain discovery order.
Ordered that the order dated January 16, 2013, is affirmed, with costs.
The Supreme Court properly denied the plaintiffs' motion, denominated as onepursuant to CPLR 2221 (e) for leave to renew or, in the alternative, pursuant to CPLR2221 (d) for leave to reargue, their prior opposition to the separate motions of thedefendants and the third-party defendant pursuant to CPLR 3126 to strike the complaintand third-party complaint for failure to comply with a certain discovery order. Inactuality, the plaintiffs sought to vacate an order dated March 2, 2012, which grantedthose motions upon the plaintiffs' default in opposing the motions. Thus, the plaintiffs'motion should have been made pursuant to CPLR 5015 (a) (1), and we construe it assuch (see generally Mount SinaiHosp. v Dust Tr., Inc., 104 AD3d 823, 824-825 [2013]).
[*2] "In order to vacate a default in opposing a motionpursuant to CPLR 5015 (a) (1), the moving party is required to demonstrate a reasonableexcuse for his or her default and a potentially meritorious opposition to the motion" (Delvalle v Mercedes Benz USA,LLC, 117 AD3d 893, 893 [2014] [internal quotation marks omitted]). Here, theplaintiffs failed to demonstrate a reasonable excuse for their default in opposing themotions. The plaintiffs' claim of law office failure was undetailed, conclusory,unsubstantiated and, under the circumstances presented here, did not constitute areasonable excuse for their default (see Eastern Sav. Bank, FSB v Charles, 103 AD3d 683, 684[2013]; Herrera v MTA BusCo., 100 AD3d 962, 963 [2012]). Since the plaintiffs failed to demonstrate areasonable excuse for their default, it is unnecessary to determine whether theydemonstrated the existence of a potentially meritorious opposition to the motions (seeHerrera v MTA Bus Co., 100 AD3d at 963).
The plaintiffs' remaining contentions are without merit.
Accordingly, the plaintiffs' motion was properly denied. Hall, J.P., Cohen,Hinds-Radix and LaSalle, JJ., concur.