Gomez v. Lotero

Appellate Division of the Supreme Court of New York

Gomez v. Lotero

273 A.D.2d 198, 709 N.Y.S.2d 441, 2000 N.Y. App. Div. LEXIS 6235

Appellate Division of the Supreme Court of the State of New York·Decided June 5, 2000·Published·Cited by 2 cases

Opinion

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Golar, J.), dated January 15, 1999, which denied their motion to vacate a prior order of the same court, dated June 29, 1998, granting the defendant’s motion for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d), upon their default in opposing the motion.

Ordered that the order is affirmed, with costs.

To vacate a default on a motion, a plaintiff must establish that the default was excusable and that he or she has a meritorious cause of action (see, McFarlane v City of New York, 243 AD2d 691). The affirmation of the plaintiffs’ expert, which was the only competent evidence submitted in support of their motion to vacate the prior order, failed to make out a meritorious cause of action (see, Smith v Askew, 264 AD2d 834; Grossman v Wright, 268 AD2d 79). O’Brien, J. P., Sullivan, Goldstein, Luciano and Feuerstein, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Golar, J.), dated January 15, 1999, which denied their motion to vacate a prior order of the same court, dated June 29, 1998, granting the defendant’s motion for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d), upon their default in opposing the motion.

Ordered that the order is affirmed, with costs.

To vacate a default on a motion, a plaintiff must establish that the default was excusable and that he or she has a meritorious cause of action (see, McFarlane v City of New York, 243 AD2d 691). The affirmation of the plaintiffs’ expert, which was the only competent evidence submitted in support of their motion to vacate the prior order, failed to make out a meritorious cause of action (see, Smith v Askew, 264 AD2d 834; Grossman v Wright, 268 AD2d 79). O’Brien, J. P., Sullivan, Goldstein, Luciano and Feuerstein, JJ., concur.

Gomez v. Lotero, 273 A.D.2d 198, 709 N.Y.S.2d 441, 2000 N.Y. App. Div. LEXIS 6235 (N.Y. Ct. App. 2000).

Pincite

273 A.D.2d 198 (Gomez v. Lotero) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related