DeFAZIO v. BERLEY REALTY CORP (1999)

Order, Supreme Court, New York County (Richard Braun, J.), entered on or about December 15, 1997, which denied plaintiffs' motion to renew and upon renewal to vacate a prior order entered upon their default granting defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The IAS court properly denied plaintiffs' motion to renew (see, Silverman v. Leucadia, Inc., 159 A.D.2d 254, 552 N.Y.S.2d 248).   In any event, on the merits, plaintiffs failed to establish either a reasonable excuse for their default or that their claim was meritorious (see, Goncalves v. Stuyvesant Dev. Assocs., 232 A.D.2d 275, 648 N.Y.S.2d 441).   Plaintiffs' affidavit of merit, containing little else but conclusory allegations, failed to make a sufficient showing that the alleged assault was foreseeable, or that it was proximately caused by some breach by defendants of a duty owed by them to plaintiff (compare, Bonano v. S.Z. Realty Corp., 256 A.D.2d 268, 682 N.Y.S.2d 180).

MEMORANDUM DECISION.