Opinion
2010-2507 K C
11-17-2011
Isiaka Elesho, Individually, Appellant, -and- ISIAKA ELESHO as Guardian for OLALEKAN ELESHO, a minor, Plaintiff, v. Jennifer P. Braz and JOHN THOMAS, Respondents.
PRESENT: : , P.J., WESTON and STEINHARDT, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered March 25, 2010. The order denied a motion by plaintiff Isiaka Elesho, acting in his individual capacity, to vacate so much of a prior order as granted the branch of defendants' unopposed motion for summary judgment dismissing the complaint insofar as asserted by Isiaka Elesho individually and, upon vacatur, to deny the branch of defendants' motion seeking summary judgment dismissing the complaint insofar as asserted by Isiaka Elesho individually.
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this action, individually and as guardian for his son, to recover for personal injuries allegedly sustained in a motor vehicle accident. Defendants moved for summary judgment dismissing the complaint on the ground that neither Isiaka Elesho nor Olalekan Elesho had sustained serious injuries within the meaning of Insurance Law § 5102 (d). Defendants' motion was unopposed. By order entered August 20, 2009, the Civil Court granted the motion. Subsequently, plaintiff, in his individual capacity, moved, pursuant to CPLR 5015 (a), for an order vacating so much of the August 20, 2009 order as granted the branch of defendants' motion seeking summary judgment dismissing the complaint insofar as asserted by him individually and, upon vacatur, denying this branch of defendants' motion, on the ground that defendants had failed to make a prima facie showing that he did not suffer a medically determined injury of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Insurance Law § 5102 [d]). Defendants submitted opposition to plaintiff's motion. By order entered March 25, 2010, the Civil Court denied the motion.
In order to vacate the order entered upon his default in opposing defendants' motion, plaintiff was required to demonstrate both a reasonable excuse for his default and a meritorious claim (see CPLR 5015 [a]; St. Rose v McMorrow, 43 AD3d 1146 [2007]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the motion court (see Legaretta v Ekhstor, 74 AD3d 899 [2010]). Plaintiff's claim of law office failure was insufficient to excuse his failure to oppose defendants' motion for summary judgment. Moreover, with respect to the merits, since plaintiff did not allege in the bill of particulars that he had suffered a serious injury under the 90/180-day category of Insurance Law § 5102 (d), defendants were not required to address these alleged injuries in their motion for summary judgment (Ali v Mirshah, 41 AD3d 748 [2007]; see also Kreimerman v Stunis, 74 AD3d 753 [2010]; Su Gil Yun v Barber, 63 AD3d 1140 [2009]; Marte v New York City Tr. Auth., 59 AD3d 398 [2009]). As plaintiff failed to establish his entitlement to the relief requested, the order is affirmed.
Pesce, P.J., Weston and Steinhardt, JJ., concur.