Itskovich v. Lichenstadter

2 A.D.3d 406, 767 N.Y.S.2d 859

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated December 11, 2002, which granted the plaintiffs motion to vacate an order of the same court dated November 27, 2001, granting the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), upon the plaintiffs default in opposing the motion.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the order dated November 27, 2001, is reinstated.

A plaintiff attempting to vacate an order granting a motion for summary judgment dismissing the complaint, upon his or her default in opposing the motion, must establish both a reasonable excuse for the default and a meritorious cause of action (see Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). Here, the only competent medical evidence submitted by the plaintiff failed to indicate that his alleged injuries were causally related to the subject motor vehicle accident (see Verrelli v Tronolone, 230 AD2d 789 [1996]). Accordingly, the plaintiff failed to establish that his claim of serious injury was meritorious, and the Supreme Court should have denied his motion to vacate his default in failing to oppose the defendants’ motion for summary judgment. Altman, J.P., S. Miller, McGinity, Adams and Mastro, JJ., concur.