Opinion
2001-07369
Submitted January 27, 2003.
March 10, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated June 20, 2001, which denied his motion to vacate a prior order of the same court, dated March 9, 2001, granting, upon his default in appearing at oral argument, the defendant's motion for summary judgment dismissing the complaint and to deem the service and filing of an amended notice of claim timely. Justice Feuerstein has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1[c]).
Manuel D. Gomez, New York, N.Y., for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Stephen J. McGrath of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
To vacate a default, a movant must establish both a reasonable excuse and a meritorious claim or defense (see Westchester County Med. Ctr. v. Allstate Ins. Co., 283 A.D.2d 488; Greene v. New York City Hous. Auth., 283 A.D.2d 458; Matter of AIU Ins. Co. v. Fernandez, 281 A.D.2d 542, 543; Poincy v. White Bus Co., 278 A.D.2d 467).
The only explanation offered by the plaintiff for his default in opposing the defendant's motion was that his attorney was late for a motion calendar call. Although law office failure may constitute a reasonable excuse under certain circumstances, the explanation offered was conclusory and devoid of any detailed factual allegations, and thus did not constitute a reasonable excuse (see Morris v. Metropolitan Transp. Auth., 191 A.D.2d 682, 683).
In addition, the proposed amended notice of claim was a "nullity," as it was served upon the defendant City of New York without leave of court (Henry v. Aguilar, 282 A.D.2d 711; see General Municipal Law § 50-e[a]). Further, any amended notice of claim served two years after the incident would be prejudicial to the City, since the initial notice of claim served in this case failed to describe the accident location with sufficient particularity (see Earle v. Town of Oyster Bay, 247 A.D.2d 357, 358).
The plaintiff's remaining contention raises an issue that is dehors the record and will not be considered on appeal (see Matter of Acme Bus Co. v. Board of Educ. of Roosevelt Union Free School Dist., 91 N.Y.2d 51, 56, n; R J Yorek, Inc. v. MCL Constr., 173 A.D.2d 531, 532; Carhuff v. Barnett's Bake Shop, 54 A.D.2d 969).
FEUERSTEIN, J.P., S. MILLER, FRIEDMANN and COZIER, JJ., concur.