JOSEPH v. GMAC LEASING CORPORATION (2007)

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Queens County (Satterfield, J.), entered September 14, 2006, which denied his motion to vacate a prior order of the same court dated March 29, 2005, granting the defendants' motion for summary judgment dismissing the complaint upon his default in opposing the motion.

ORDERED that the order is affirmed, with costs.

 To vacate the order dated March 29, 2005, entered upon the plaintiff's default in opposing the defendants' motion for summary judgment dismissing the complaint, the plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious opposition to the motion for summary judgment (see Rockland Tr. Mix, Inc. v. Rockland Enters., Inc., 28 A.D.3d 630, 814 N.Y.S.2d 196;  Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114;  Parker v. City of New York, 272 A.D.2d 310, 707 N.Y.S.2d 199).   Although the court may, in its discretion, accept law office failure as a reasonable excuse (see CPLR 2005;  Putney v. Pearlman, 203 A.D.2d 333, 612 N.Y.S.2d 919), “ ‘a pattern of willful default and neglect’ should not be excused” (Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66, quoting Gannon v. Johnson Scale Co., 189 A.D.2d 1052, 1052, 592 N.Y.S.2d 881).   Here, the plaintiff's failure to timely comply with a conditional so-ordered stipulation dated September 22, 2004, and to oppose the defendants' motion for summary judgment, and his further one-year delay in moving to vacate the order dated March 29, 2005, constituted a pattern of willful default and neglect that cannot be excused (see Glanville v. Lets Care Again Daycare, Inc., 40 A.D.3d 580, 581, 833 N.Y.S.2d 402;  Amato v. Fast Repair, Inc., 15 A.D.3d 429, 790 N.Y.S.2d 510;  Santiago v. New York City Health & Hosps. Corp., 10 A.D.3d 393, 394, 780 N.Y.S.2d 764).   Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to vacate the order dated March 29, 2005, entered upon his default.