KASSIANO v. PALM MANAGEMENT CORPORATION

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Supreme Court, Appellate Division, First Department, New York.

Marcelino KASSIANO, et al., Plaintiffs–Appellants, v. PALM MANAGEMENT CORPORATION, et al., Defendants–Respondents.

Decided: May 08, 2012

MAZZARELLI, J.P., SAXE, MOSKOWITZ, RENWICK, FREEDMAN, JJ. Thomas D. Wilson, P.C., Brooklyn (Thomas D. Wilson of counsel), for appellants. Carroll, McNulty & Kull LLC, New York (Emilio F. Grillo of counsel), for respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 1, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion to vacate an order which, upon plaintiffs' default, granted defendants' motion for leave to amend their answer to assert a defense based on the exclusivity provisions of the Workers' Compensation Law and to dismiss the complaint based on that defense, unanimously affirmed, without costs.

 A plaintiff seeking to vacate a default in responding to a motion to dismiss pursuant to CPLR 5015(a)(1) must proffer both a reasonable excuse for the default and a meritorious cause of action (see Brown v. Suggs, 38 A.D.3d 329, 330, 832 N.Y.S.2d 36 [2007] ).  “Law office failure may constitute a reasonable excuse for a default” (Goodwin v. New York City Hous. Auth., 78 A.D.3d 550, 551, 913 N.Y.S.2d 149 [2010];  see CPLR 2005).

 However, on the merits, defendants' motion was supported by evidence showing that plaintiff Marcelino Kassiano was injured during the course of his employment by Palm West Corporation, that he actually received workers' compensation benefits, and that the other Palm defendants are part of a single integrated corporation for purposes of the Workers' Compensation Law (see Carty v. East 175th St. Hous. Dev. Fund Corp., 83 A.D.3d 529, 921 N.Y.S.2d 237 [2011];  Paulino v. Lifecare Transp., 57 A.D.3d 319, 869 N.Y.S.2d 439 [2008] ).   In support of their motion to vacate, plaintiffs offered no basis for finding that their claims are not barred by Workers' Compensation Law § 11.