Opinion
June 3, 1996
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the appeal from the order dated November 3, 1994, is dismissed, without costs or disbursements, as no appeal lies from an order made upon the default of the appealing party ( see, CPLR 5511); and it is further,
Ordered that the appeal from so much of the order entered May 8, 1995, as denied the branch of the plaintiffs' motion which was for reargument is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,
Ordered that the appeal from so much of the order entered May 8, 1995, as denied the branch of the plaintiffs' motion which was to vacate their default is affirmed, without costs or disbursements; and it is further,
Ordered that the appeal from so much of the order entered May 8, 1995, as denied the branch of the plaintiffs' motion which was for renewal is dismissed, without costs or disbursements, as academic; and it is further,
Ordered that the appeal from the order entered January 17, 1995, is dismissed, without costs or disbursements, as academic.
To warrant vacatur of an order entered upon default, the movant must demonstrate that there was an excusable delay and a meritorious cause of action ( see, CPLR 5015 [a] [1]; Fennell v. Mason, 204 A.D.2d 599; Putney v. Pearlman, 203 A.D.2d 333; Schiavetta v. McKeon, 190 A.D.2d 724). In the present case, the appellants failed to sustain their burden of demonstrating a meritorious cause of action in that they failed to establish that the injured plaintiff sustained a "serious injury" in the subject accident (Insurance Law § 5102 [d]; see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957).
The record reveals that the subject accident occurred on December 20, 1991, and that the injured plaintiff's chiropractor took X rays on May 5, 1992, which revealed "straightening of the normal cervical lordosis". Two years later on March 17, 1994, an MRI scan revealed a disc herniation and two bulging discs. Although a disc herniation may constitute a serious injury ( see, Flanagan v. Hoeg, 212 A.D.2d 756; Jackson v. United Parcel Serv., 204 A.D.2d 605), under the circumstances of this case, it is sheer speculation to conclude that the accident on December 20, 1991 was the cause of the disc herniation and bulges. Accordingly, the Supreme Court properly denied the plaintiffs' motion to vacate their default.
In light of the foregoing determination, the plaintiffs' remaining contentions are academic. Mangano, P.J., Thompson, Florio and McGinity, JJ., concur.