CACCIATORE v. Brooklyn Union Gas Company, Defendant-Appellant. (2008)

Order, Supreme Court, Kings County (Martin M. Solomon, J.), entered April 10, 2007, which, in an action arising out of a trip and fall allegedly caused by a roadway defect, insofar as appealed from, granted plaintiffs' motion to vacate a prior order granting defendant-appellant Brooklyn Union Gas Co.'s motion for summary judgment upon plaintiffs' failure to appear for oral argument, unanimously affirmed, without costs.   Order, same court (Jack M. Battaglia, J.), entered May 21, 2007, which, insofar as appealed from, denied Brooklyn Union's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, the motion granted, and the complaint and all cross claims dismissed as against Brooklyn Union.   The Clerk is directed to enter judgment accordingly.

 The prior order was properly vacated upon an adequate showing that the reason plaintiffs did not appear for oral argument of Brooklyn Union's and defendant City's post-note of issue motions for summary judgment, after having submitted written opposition thereto, was law office failure, and that plaintiffs had been otherwise diligent in prosecuting this then-eight-year-old action (CPLR 2005;  see White v. Incorporated Vil. of Hempstead, 41 A.D.3d 709, 710, 838 N.Y.S.2d 607 [2007] ).   While plaintiffs' showing of merit was sufficient for the purpose of vacating a minor, nonprejudicial default, they failed to raise an issue of fact in response to Brooklyn Union's prima facie showing that it never performed any work on the west side of the street where the injured plaintiff fell, only the east side where the gas main is located.   Plaintiffs' engineer asserts that some of Brooklyn Union's frequent and admitted work on the east side of the street was such as to require excavations on the west side, but he does not claim to have ever personally visited the site, much less inspected it or taken any measurements, and his affidavit is otherwise speculative and conclusory (see Murphy v. Conner, 84 N.Y.2d 969, 972, 622 N.Y.S.2d 494, 646 N.E.2d 796 [1994];  Haberman v. Cheesecake Factory Rests., Inc., 43 A.D.3d 392, 842 N.Y.S.2d 450 [2007] ).