Opinion
2010-2448 Q C.
Decided June 14, 2011.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered July 6, 2010, deemed from a judgment of the same court entered August 25, 2010 (see CPLR 5520 [c]). The judgment, entered pursuant to an order entered May 19, 2009 granting, on default, defendants' motion for summary judgment, dismissed the complaint. The appeal from the judgment brings up for review the order entered July 6, 2010, which denied plaintiffs' motion to vacate the order entered May 19, 2009.
ORDERED that the judgment is affirmed, without costs.
PRESENT: STEINHARDT, J.P., GOLIA and RIOS, JJ.
Plaintiffs commenced this action to recover for personal injuries allegedly sustained by the infant plaintiff Nelson Salmeron in a motor vehicle accident and for Maria Romero's loss of services. Defendants moved for summary judgment dismissing the complaint on the ground that they were not liable for the accident, or, in the alternative, that Nelson Salmeron did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). During the course of the litigation, plaintiffs obtained several adjournments of defendants' motion until the motion was submitted unopposed and referred to Judge Anna Culley. By order entered May 19, 2009, Judge Culley, finding that defendants had established that they were not liable for the accident and that Nelson Salmeron had not sustained a serious injury under Insurance Law § 5102 (d), granted defendants' motion on default. By notice of motion served by mail upon defendants' counsel on February 19, 2010, plaintiffs moved for an order, pursuant to CPLR 5015 (a), vacating the default order and, upon vacatur, denying the summary judgment motion. In support of the motion to vacate, plaintiffs' counsel asserted, among other things, that a former associate of his law firm had failed to complete preparation of plaintiffs' opposition papers. By order entered July 6, 2010, the Civil Court (Rudolph E. Greco, Jr., J.) denied plaintiffs' motion. This appeal by plaintiffs ensued. A judgment dismissing the complaint was entered on August 25, 2010. Plaintiffs' appeal is deemed to be from the judgment ( see CPLR 5520 [c]).
A plaintiff seeking to vacate an order entered on default ( see CPLR 5015 [a]) must demonstrate a reasonable excuse for the default and a meritorious cause of action ( see Legaretta v Ekhstor , 74 AD3d 899 ; Donovan v Chiapetta , 72 AD3d 635 ). The determination of what constitutes a reasonable excuse lies within the court's sound discretion ( see Diaz v Ralph , 66 AD3d 819 ). In the present case, as the assertion by plaintiffs' counsel, that an unnamed former law firm associate had not completed the preparation of papers in opposition to defendants' motion, was conclusory, undetailed and uncorroborated, it was insufficient to serve as a reasonable excuse ( see Campbell-Jarvis v Alves , 68 AD3d 701 ; Nemiroff v Schildhaus, 209 AD2d 676). Moreover, plaintiffs waited nine months to seek to vacate the May 19, 2009 order. Plaintiffs also failed to demonstrate a meritorious cause of action, since they submitted neither competent nor admissible medical evidence demonstrating that Nelson Salmeron sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident ( see Mora v Scarpitta , 52 AD3d 663 ).
We further note that there is no merit to plaintiffs' contention that defendants' motion for summary judgment was untimely. The record demonstrates that defendants served their notice of motion upon plaintiffs' counsel within 120 days of the filing of the notice of trial ( see CPLR 3212 [a]).
Accordingly, the judgment is affirmed.
Steinhardt, J.P., Golia and Rios, JJ., concur.