Opinion
2014-05-21
Danny DELVALLE, plaintiff, v. MERCEDES BENZ USA, LLC, et al., defendants third-party plaintiffs-appellants; Chetum Singh, et al., third-party defendants-respondents, et al., third-party defendants.
Buckley Law Group, P.A., New York, N.Y. (Alan R. Levy of counsel), for defendants third-party plaintiffs-appellants. Russo & Toner, LLP, New York, N.Y. (Mitchell A. Greene of counsel), for third-party defendants-respondents.
Buckley Law Group, P.A., New York, N.Y. (Alan R. Levy of counsel), for defendants third-party plaintiffs-appellants. Russo & Toner, LLP, New York, N.Y. (Mitchell A. Greene of counsel), for third-party defendants-respondents.
In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated May 4, 2012, which denied their motion pursuant to CPLR 5015(a)(1) to vacate so much of an order of the same court dated March 11, 2011, as granted the cross motion of the third-party defendants Chetum Singh and Ramjit Singh for summary judgment dismissing the third-party complaint insofar as asserted against them.
ORDERED that the order dated May 4, 2012, is affirmed, with costs.
“In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion” ( Rocco v. Family Foot Ctr., 94 A.D.3d 1077, 1079, 942 N.Y.S.2d 607;see Braynin v. Dunleavy, 109 A.D.3d 571, 970 N.Y.S.2d 611;Thapt v. Lutheran Med. Ctr., 89 A.D.3d 837, 932 N.Y.S.2d 346). “A motion to vacate a default is addressed to the sound discretion of the motion court” ( Braynin v. Dunleavy, 109 A.D.3d at 571, 970 N.Y.S.2d 611;see Kohn v. Kohn, 86 A.D.3d 630, 928 N.Y.S.2d 55).
Here, the defendants third-party plaintiffs failed to demonstrate a reasonable excuse for their default in opposing the cross motion of the third-party defendants Chetum Singh and Ramjit Singh for summary judgment dismissing the third-party complaint insofar as asserted against them ( see Turko v. Daffy's, Inc., 111 A.D.3d 615, 974 N.Y.S.2d 126;Tsikotis v. Pioneer Bldg. Corp., 96 A.D.3d 936, 946 N.Y.S.2d 491). In light of the defendants third-party plaintiffs' failure to provide a reasonable excuse for their default, we need not evaluate whether they demonstrated a potentially meritorious opposition to the cross motion ( see Turko v. Daffy's, Inc., 111 A.D.3d at 617, 974 N.Y.S.2d 126;Herrera v. MTA Bus Co., 100 A.D.3d 962, 963, 954 N.Y.S.2d 631). Accordingly, the Supreme Court properly denied the defendants third-party plaintiffs' motion to vacate so much of an order dated March 11, 2011, as granted the cross motion of the third-party defendants Chetum Singh and Ramjit Singh for summary judgment dismissing the third-party complaint insofar as asserted against them. BALKIN, J.P., DICKERSON, CHAMBERS and HALL, JJ., concur.