RODRIGUEZ v. NG (2005)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Golia, J.), dated November 12, 2004, which granted the plaintiffs' motion, in effect, to vacate a judgment entered March 29, 2004, upon their failure to oppose the defendants' motion, inter alia, to dismiss the complaint for failure to comply with discovery demands.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the judgment entered March 29, 2004, is reinstated.

A judgment of dismissal based upon default was entered against the plaintiffs when they failed to oppose the defendants' motion, inter alia, to dismiss the complaint for failure to comply with discovery requests.   To vacate the judgment dismissing the complaint, the plaintiffs were required to proffer a reasonable excuse for their default and establish the existence of a meritorious cause of action (see CPLR 5015[a][1];  Alliance Prop. Mgt. & Dev. v. Andrews Ave. Equities, 70 N.Y.2d 831, 523 N.Y.S.2d 441, 517 N.E.2d 1327;  Seven Acre Wood St. Assoc. v. Wood, 286 A.D.2d 432, 729 N.Y.S.2d 893;  McNeil v. Milstein, 240 A.D.2d 549, 659 N.Y.S.2d 789).   The record reveals an overall lack of diligence by the plaintiffs in responding to discovery demands and that the return date on the motion had been twice adjourned at their request.   The plaintiffs' only excuse, that their counsel erroneously believed that a preliminary conference order issued a week prior to the return date of the motion obviated the need to oppose the defendants' motion, had no factual basis in the record and, in any event, did not constitute a valid excuse for their default (see Everything Yogurt v. Toscano, 232 A.D.2d 604, 649 N.Y.S.2d 163;  Martinez v. Otis El. Co., 213 A.D.2d 523, 624 N.Y.S.2d 43;  Clarke v. New Rochelle Hosp. Med. Ctr., 149 A.D.2d 559, 539 N.Y.S.2d 1008;  Awad v. Severino, 122 A.D.2d 242, 505 N.Y.S.2d 437). Furthermore, the plaintiffs failed to establish a meritorious cause of action (see Cunningham v. Diers, 14 A.D.3d 528, 787 N.Y.S.2d 669;  Uddin v. Mirza, 10 A.D.3d 722, 781 N.Y.S.2d 911;  LaMacchia v. Rogers, 8 A.D.3d 346, 777 N.Y.S.2d 736).   Accordingly, the plaintiffs' motion to vacate their default should have been denied.