Opinion
2014-07-16
Ludmila TATARINOVA, et al., appellants, v. Kenneth James BOO, Jr., et al., respondents.
Gary Tsirelman, P.C., Brooklyn, N.Y. (Stefan Belinfanti of counsel), for appellants. Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for respondents.
Gary Tsirelman, P.C., Brooklyn, N.Y. (Stefan Belinfanti of counsel), for appellants. Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rothenberg, J.), dated January 3, 2013, which denied their motion to vacate a prior order of the same court dated December 1, 2011, granting the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Ludmilla Tatarinova did not sustain a serious injury within the meaning of Insurance Law § 5102(d), upon their failure to oppose the defendants' motion.
ORDERED that the order dated January 3, 2013, is affirmed, with costs.
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 ( see CPLR 5015[a][1]; Santos v. Penske Truck Leasing Co., 105 A.D.3d 1029, 964 N.Y.S.2d 207;Political Mktg., Int'l, Inc. v. Jaliman, 67 A.D.3d 661, 661–662, 888 N.Y.S.2d 552). “A motion to vacate a default is addressed to the sound discretion of the court” ( Vujanic v. Petrovic, 103 A.D.3d 791, 792, 961 N.Y.S.2d 210). Here, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion to vacate their default based on their failure to make the requisite showing. MASTRO, J.P., HALL, LOTT, AUSTIN and DUFFY, JJ., concur.