From Casetext: Smarter Legal Research

Peterson v. Scandurra Trucking Co., Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 29, 1996
226 A.D.2d 691 (N.Y. App. Div. 1996)

Opinion

April 29, 1996

Appeal from the Supreme Court, Kings County (Vaccaro, J.).


Ordered that the order dated May 3, 1995, as amended, is reversed insofar as appealed from, as a matter of discretion, with costs, and the plaintiffs' motion to vacate their default is denied.

Under the circumstances of this case, we find that the Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion to vacate their default. Our review of the record reveals that the proffered excuse of law office failure was not a reasonable excuse for the plaintiffs' default ( see, CPLR 2005; Correa v. Ahn, 205 A.D.2d 575; American Sigol Corp. v Zicherman, 166 A.D.2d 628, 629; Gass v. Gass, 101 A.D.2d 849). Moreover, the plaintiffs failed to adequately demonstrate that their claim has merit. The injured plaintiff's affidavit of merit failed to set forth evidentiary facts and contained only conclusory assertions ( see, Starr Block Co. v. Tedesco, 146 A.D.2d 692, 693). Additionally, the plaintiffs' complaint and bill of particulars were verified by their attorney, not by a person with personal knowledge ( see, Terranova v. Gallagher Truck Ctr., 121 A.D.2d 621). Since the plaintiffs failed to establish both a reasonable excuse for the default and a meritorious claim, the motion to vacate their default should have been denied ( see generally, Putney v. Pearlman, 203 A.D.2d 333; Fennell v. Mason, 204 A.D.2d 599; Schiavetta v. McKeon, 190 A.D.2d 724).

In light of our determination, we need not address the appellant's remaining contention. Mangano, P.J., Thompson, Florio and McGinity, JJ., concur.


Summaries of

Peterson v. Scandurra Trucking Co., Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 29, 1996
226 A.D.2d 691 (N.Y. App. Div. 1996)
Case details for

Peterson v. Scandurra Trucking Co., Inc.

Case Details

Full title:ANDREW PETERSON et al., Respondents, v. SCANDURRA TRUCKING CO., INC.…

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

Date published: Apr 29, 1996

Citations

226 A.D.2d 691 (N.Y. App. Div. 1996)
642 N.Y.S.2d 540

Citing Cases

Spells v. a P Supermarkets, Inc.

Because the plaintiff failed to establish both a reasonable excuse for her default and a meritorious claim,…

Severinghaus v. City of New York

. This principle is supported by legal precedents such as McKenna v. Solomon, 255 A.D.2d 496, 496-97 (2d Dept…