KOLAJO KOLAJO v. CITY OF NEW YORK (1998)

In an action, inter alia, to recover damages for personal injuries, etc., the defendant City of New York appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated January 31, 1997, which denied its motion to vacate an order of the same court, dated January 18, 1996, granting the plaintiffs' motion for summary judgment on the issue of liability upon the City's default in responding to the motion.

ORDERED that the order is affirmed, with costs.

It is well settled that on a motion to vacate a default pursuant to CPLR 5015(a), a defendant must demonstrate a reasonable excuse for the default and a meritorious defense (Roussodimou v. Zafiriadis, 238 A.D.2d 568, 657 N.Y.S.2d 66;  Fennell v. Mason, 204 A.D.2d 599, 612 N.Y.S.2d 416).   A 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;  Vierya v. Briggs & Stratton Corp., 166 A.D.2d 645, 561 N.Y.S.2d 74), “but ‘a pattern of willful default and neglect’ should not be excused” (Roussodimou v. Zafiriadis, supra, at 569, 657 N.Y.S.2d 66, quoting Gannon v. Johnson Scale Co., 189 A.D.2d 1052, 592 N.Y.S.2d 881).

In the instant case, not only did the City of New York repeatedly fail to comply with the court's discovery orders or pay court-ordered sanctions for a period of 22 months after a preliminary conference order was issued, but it failed to respond to the plaintiffs' summary judgment motion because its counsel misread the motion papers.   Furthermore, the City waited approximately seven months before moving to vacate its default.   Therefore, the Supreme Court properly denied the City's motion to vacate its default in responding to the plaintiffs' motion for summary judgment on the issue of liability.

Moreover, the City's affidavit of merit, which contained only conclusory assertions and denials of negligence, was insufficient to establish a meritorious defense (see, Peterson v. Scandurra Trucking Co., 226 A.D.2d 691, 692, 642 N.Y.S.2d 540;  Lener v. Club Med, 168 A.D.2d 433, 435, 562 N.Y.S.2d 556;  Starr Block Co. v. Tedesco, 146 A.D.2d 692, 693, 538 N.Y.S.2d 463).

MEMORANDUM BY THE COURT.