Garcia v. Riverbay Corp.

Appellate Division of the Supreme Court of New York

Garcia v. Riverbay Corp.

112 A.D.3d 542, 976 N.Y.S.2d 877

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 24, 2013

StatusPublished

This text of 112 A.D.3d 542 (Garcia v. Riverbay Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Garcia v. Riverbay Corp., 112 A.D.3d 542, 976 N.Y.S.2d 877 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, Bronx County (Kibbie F. Payne, J.), entered August 14, 2012, which, in an action for personal injuries, denied plaintiffs motion to vacate a prior order granting defendant’s motion for summary judgment upon plaintiffs default, unanimously affirmed, without costs.

The court exercised its discretion in a provident manner in [543]*543denying the motion to vacate the default. Plaintiff failed to offer a reasonable excuse for the default, as her counsel made only conclusory assertions of having been engaged in another trial, without any support and without naming the time and dates of such engagement, the court, the judge or any other details (see Polanco v City of New York, 78 AD3d 617 [1st Dept 2010]; 22 NYCRR 125.1). Nor did counsel’s conclusory statement that he was “under the impression” that plaintiff’s ex parte motion for an adjournment had been granted constitute a reasonable excuse (see Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC, 95 AD3d 789, 790 [1st Dept 2012]).

Moreover, plaintiff lacks a meritorious cause of action. Concur — Mazzarelli, J.P., Sweeny, Moskowitz, Freedman and Clark, JJ.

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Order, Supreme Court, Bronx County (Kibbie F. Payne, J.), entered August 14, 2012, which, in an action for personal injuries, denied plaintiffs motion to vacate a prior order granting defendant’s motion for summary judgment upon plaintiffs default, unanimously affirmed, without costs.

The court exercised its discretion in a provident manner in [543]*543denying the motion to vacate the default. Plaintiff failed to offer a reasonable excuse for the default, as her counsel made only conclusory assertions of having been engaged in another trial, without any support and without naming the time and dates of such engagement, the court, the judge or any other details (see Polanco v City of New York, 78 AD3d 617 [1st Dept 2010]; 22 NYCRR 125.1). Nor did counsel’s conclusory statement that he was “under the impression” that plaintiff’s ex parte motion for an adjournment had been granted constitute a reasonable excuse (see Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC, 95 AD3d 789, 790 [1st Dept 2012]).

Moreover, plaintiff lacks a meritorious cause of action. Concur — Mazzarelli, J.P., Sweeny, Moskowitz, Freedman and Clark, JJ.

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Bluebook (online)

112 A.D.3d 542, 976 N.Y.S.2d 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-riverbay-corp-nyappdiv-2013.

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