MONTAGUE v. RIVERA (2008)

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated March 2, 2007, which granted the plaintiff's motion to vacate a prior order of the same court dated May 19, 2000, granting their unopposed motion to dismiss the complaint.

ORDERED that the order dated March 2, 2007, is reversed, on the law, with costs, the plaintiff's motion to vacate the order dated May 19, 2000, is denied, and the order dated May 19, 2000, is reinstated.

 In order to prevail on a motion to vacate a default in opposing a motion, a moving party is required to demonstrate both a reasonable excuse for its default and a meritorious claim (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Perez v. Han Ki Man, 39 A.D.3d 521, 835 N.Y.S.2d 216;  Psomatithis v. Transoceanic Cable Ship Co., Inc., 39 A.D.3d 837, 834 N.Y.S.2d 318;  Oyebola v. Makuch, 10 A.D.3d 600, 601, 781 N.Y.S.2d 455;  Itskovich v. Lichenstadter, 2 A.D.3d 406, 407, 767 N.Y.S.2d 859;  Beale v. Yepes, 309 A.D.2d 886, 887, 766 N.Y.S.2d 364).   Here, the plaintiff failed to do either.   The conclusory reasons for the default offered by the plaintiff's counsel were not substantiated by detailed facts and thus were insufficient to constitute a justifiable excuse (see Juarbe v. City of New York, 303 A.D.2d 462, 756 N.Y.S.2d 427;  Shmarkatyuk v. Chouchereba, 291 A.D.2d 487, 738 N.Y.S.2d 367;  Morris v. Metropolitan Transp. Auth., 191 A.D.2d 682, 595 N.Y.S.2d 539).   Further, the plaintiff failed to submit competent medical evidence demonstrating that he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject automobile accident (see Itskovich v. Lichenstadter, 2 A.D.3d at 407, 767 N.Y.S.2d 859;  Beale v. Yepes, 309 A.D.2d at 887, 766 N.Y.S.2d 364;  Waaland v. Weiss, 228 A.D.2d 435, 436, 643 N.Y.S.2d 635).   Accordingly, the Supreme Court should have denied the plaintiff's motion to vacate the order dated May 19, 2000.