Opinion
2018–12517 Index No. 66563/14
01-13-2021
William BURA, et al., appellants, v. WESTFAIR CORP., et al., respondents.
Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, NY, [Scott T. Horn and Christen Giannaros], of counsel), for appellants. Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (David P. Feehan of counsel), for respondent Westfair Corp. Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Daniel S. Kotler and C. Briggs Johnson of counsel), for respondents TNA Entertainment, LLC, and Total Nonstop Action Wrestling.
Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, NY, [Scott T. Horn and Christen Giannaros], of counsel), for appellants.
Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (David P. Feehan of counsel), for respondent Westfair Corp.
Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Daniel S. Kotler and C. Briggs Johnson of counsel), for respondents TNA Entertainment, LLC, and Total Nonstop Action Wrestling.
WILLIAM F. MASTRO, A.P.J., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated October 11, 2018. The order denied the plaintiffs' motion to vacate an order dated November 6, 2017, directing dismissal of the complaint based on the plaintiffs' failure to comply with a conditional order of dismissal.
ORDERED that the order dated October 11, 2018, is affirmed, with costs.
After the plaintiffs' repeated failure to comply with discovery demands, despite court orders, the Supreme Court issued a conditional order of dismissal, directing the defendants to move to dismiss the complaint if the plaintiffs failed to provide outstanding discovery. The plaintiffs failed to comply, and then failed to oppose the defendants' motion to dismiss the complaint based upon the conditional order of dismissal. In an order dated November 6, 2017, the court directed dismissal of the complaint. Almost eight months later, the plaintiffs moved to vacate the November 6, 2017 order, which had been entered on their default. The motion was denied in an order dated October 11, 2018. The plaintiffs appeal, and we affirm.
To vacate their default, the plaintiffs were required to demonstrate that they had a reasonable excuse and a potentially meritorious cause of action (see Capital One, NA v. Amid, 174 A.D.3d 494, 104 N.Y.S.3d 186 ). The plaintiffs' claim of law office failure based on the alleged, unspecified misconduct of an unidentified paralegal whose employment allegedly was terminated was insufficient to establish a reasonable excuse (see Islam v. HPENY Hous. Dev. Fund Co., Inc., 182 A.D.3d 585, 123 N.Y.S.3d 137 ; Bank of N.Y. Mellon v. Ruci, 168 A.D.3d 799, 800, 89 N.Y.S.3d 914 ).
Since the plaintiffs failed to proffer a reasonable excuse for the default, it is unnecessary to reach the issue of whether they have a potentially meritorious cause of action (see Wells Fargo Bank, N.A. v. McClintock, 174 A.D.3d 950, 952, 107 N.Y.S.3d 46 ).
MASTRO, A.P.J., CHAMBERS, IANNACCI and WOOTEN, JJ., concur.