ORTEGA v. BISOGNO MEYERSON (2007)

In an action, inter alia, to recover damages for employment discrimination pursuant to Executive Law § 296, the plaintiffs appeal from an order of the Supreme Court, Queens County (Satterfield, J.), dated July 26, 2005, which denied their motion to vacate a prior order of the same court dated January 7, 2005, granting the defendants' renewed motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs' motion to vacate a prior order entered upon their default in opposing the defendants' renewed motion for summary judgment.   A party seeking to vacate a default must demonstrate both a reasonable excuse for the default and the existence of a meritorious claim (see CPLR 5015[a][1];  Yurteri v. Artukmac, 28 A.D.3d 545, 813 N.Y.S.2d 741;  Philippi v. Metropolitan Transp. Auth., 16 A.D.3d 654, 655, 791 N.Y.S.2d 444;  Kumar v. Yonkers Contr. Co., Inc., 14 A.D.3d 493, 494, 788 N.Y.S.2d 408).   The plaintiffs' attorneys' proffered excuse failed to adequately explain the default in this case.   Notwithstanding the fact that the plaintiffs' attorneys had recently been substituted in the case, the alleged error, miscalendaring the case by one day, cannot account for their inaction for six months when they had full knowledge of the pending motion.  “While CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse” (Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d 553, 725 N.Y.S.2d 76;  see De Vito v. Marine Midland Bank, 100 A.D.2d 530, 531, 473 N.Y.S.2d 218).   Furthermore, the plaintiffs failed to demonstrate that their surviving claims were meritorious.