CAMPBELL JARVIS v. ALVES (2009)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (McDonald, J.), dated September 5, 2008, which granted the plaintiff's motion to vacate an order of the same court dated March 20, 2008, granting the defendant's motion to dismiss the action upon her default in opposing the motion.

ORDERED that the order dated September 5, 2008, is reversed, on the law, with costs, the plaintiff's motion to vacate the order dated March 20, 2008, is denied, and the order dated March 20, 2008, is reinstated.

 In order to vacate her default in opposing the defendant's prior motion to dismiss, the plaintiff was required to demonstrate both a reasonable excuse for her default and a meritorious opposition to the motion (see Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389, 392, 850 N.Y.S.2d 629;  Hospital for Joint Diseases v. Dollar Rent A Car, 25 A.D.3d 534, 806 N.Y.S.2d 437;  Fekete v. Camp Skwere, 16 A.D.3d 544, 545, 792 N.Y.S.2d 127;  Amato v. Fast Repair, Inc., 15 A.D.3d 429, 430, 790 N.Y.S.2d 510;  Costanza v. Gold, 12 A.D.3d 551, 552, 784 N.Y.S.2d 380).   Although the determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Santiago v. New York City Health & Hosps. Corp., 10 A.D.3d 393, 394, 780 N.Y.S.2d 764;  Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66;  Grutman v. Southgate at Bar Harbor Home Owners' Assn., 207 A.D.2d 526, 527, 616 N.Y.S.2d 68), and the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), “a pattern of willful default and neglect” should not be excused (Roussodimou v. Zafiriadis, 238 A.D.2d at 569, 657 N.Y.S.2d 66 [internal quotation marks omitted];  see Santiago v. New York City Health & Hosps. Corp., 10 A.D.3d 393, 780 N.Y.S.2d 764;  Kolajo v. City of New York, 248 A.D.2d 512, 670 N.Y.S.2d 52;  Vierya v. Briggs & Stratton Corp., 166 A.D.2d 645, 645-646, 561 N.Y.S.2d 74;  Chery v. Anthony, 156 A.D.2d 414, 417, 548 N.Y.S.2d 535), and the claim of law office failure should be supported by a “detailed and credible” explanation of the default or defaults at issue (Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114;  see Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109).

 In this case, the plaintiff's attorney's conclusory, undetailed, and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Forward Door of N.Y., Inc. v. Forlader, 41 A.D.3d 535, 836 N.Y.S.2d 440;  Piton v. Cribb, 38 A.D.3d 741, 832 N.Y.S.2d 274;  Matter of ELRAC, Inc. v. Holder, 31 A.D.3d 636, 817 N.Y.S.2d 916).   In addition, the plaintiff failed to submit an affidavit of merit.   Accordingly, the Supreme Court abused its discretion in granting the plaintiff's motion to vacate an order which granted the defendant's motion to dismiss the action upon her default in opposing the motion.