From Casetext: Smarter Legal Research

Itskovich v. Lichenstadter

Appellate Division of the Supreme Court of New York, Second Department
Dec 1, 2003
2 A.D.3d 406 (N.Y. App. Div. 2003)

Opinion

2003-00750.

December 1, 2003.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated December 11, 2002, which granted the plaintiff's motion to vacate an order of the same court dated November 27, 2001, granting the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), upon the plaintiff's default in opposing the motion.

Cheven, Keely Hatzis, New York, N.Y. (Stacy R. Seldin of counsel), for appellants.

Taller Wizman, Forest Hills, N.Y. (Y. David Taller of counsel), for respondent.

Before: THOMAS A. ADAMS, WILLIAM F. MASTRO, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the order dated November 27, 2001, is reinstated.

A plaintiff attempting to vacate an order granting a motion for summary judgment dismissing the complaint, upon his or her default in opposing the motion, must establish both a reasonable excuse for the default and a meritorious cause of action ( see Roussodimou v. Zafiriadis, 238 A.D.2d 568). Here, the only competent medical evidence submitted by the plaintiff failed to indicate that his alleged injuries were causally related to the subject motor vehicle accident ( see Verrelli v. Tronolone, 230 A.D.2d 789). Accordingly, the plaintiff failed to establish that his claim of serious injury was meritorious, and the Supreme Court should have denied his motion to vacate his default in failing to oppose the defendants' motion for summary judgment.

ALTMAN, J.P., S. MILLER, McGINITY, ADAMS and MASTRO, JJ., concur.


Summaries of

Itskovich v. Lichenstadter

Appellate Division of the Supreme Court of New York, Second Department
Dec 1, 2003
2 A.D.3d 406 (N.Y. App. Div. 2003)
Case details for

Itskovich v. Lichenstadter

Case Details

Full title:DAVID ITSKOVICH, Respondent, v. LEA LICHENSTADTER, ET AL., Appellants

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 1, 2003

Citations

2 A.D.3d 406 (N.Y. App. Div. 2003)
767 N.Y.S.2d 859

Citing Cases

Mora v. Scarpitta

Ordered that the order is affirmed, with costs. In order to prevail on a motion to vacate a default in…

Montague v. Rivera

Ordered that the order dated March 2, 2007 is reversed, on the law, with costs, the plaintiffs motion to…