Opinion
2013-2408 K C
03-30-2015
George Koshy, Respondent, v. Mr. Gary Kauget, P.C., Appellant.
PRESENT: : , SOLOMON and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 11, 2012. The order granted plaintiff's motion to vacate an order of the same court (Dawn Jimenez Salta, J.) dated October 5, 2012 granting, upon plaintiff's default, a motion by defendant to dismiss the complaint.
ORDERED that the order entered December 11, 2012 is reversed, without costs, and plaintiff's motion to vacate the order dated October 5, 2012 is denied.
Plaintiff commenced this action by filing a summons with endorsed complaint to recover the sum of $25,000 for "[a]ttorney negligence" as a result of defendant's alleged legal malpractice in his representation of plaintiff in an underlying personal injury action. After issue was joined, defendant moved, pursuant to CPLR 3211 (a) (8), to dismiss the complaint for lack of personal jurisdiction. By order dated October 5, 2012, the Civil Court (Dawn Jimenez Salta, J.), upon plaintiff's default, granted defendant's motion. Thereafter, plaintiff moved to vacate the October 5, 2012 order dismissing the complaint, which motion was granted by order of the Civil Court (Robin Kelly Sheares, J.) entered December 11, 2012. This appeal by defendant ensued.
"A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion" (Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 813 [2012]; see CPLR 5015 [a] [1]; Schenk v Staten Is. Univ. Hosp., 108 AD3d 661, 662 [2013]). While plaintiff proffered a reasonable excuse for his default, he failed to demonstrate a potentially meritorious opposition to defendant's motion. Furthermore, he did not sufficiently demonstrate the potential merit of his cause of action against defendant (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). It was therefore an improvident exercise of discretion for the Civil Court to grant plaintiff's motion to vacate the October 5, 2012 order.
Accordingly, the order entered December 11, 2012 is reversed and plaintiff's motion to vacate the order dated October 5, 2012 is denied.
Weston, J.P., Solomon and Elliot, JJ., concur.
Decision Date: March 30, 2015