James C. v. Cintron

Appellate Division of the Supreme Court of New York

James C. v. Cintron

126 A.D.3d 464, 2 N.Y.S.3d 786

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

DecidedMarch 10, 2015

Docket14451 24209/05

StatusPublished

Cited by1 cases

This text of 126 A.D.3d 464 (James C. v. Cintron) 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

James C. v. Cintron, 126 A.D.3d 464, 2 N.Y.S.3d 786 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about September 19, 2013, which granted plaintiffs’ motion to vacate a prior dismissal of this action and *465 restore the case to the trial calendar, unanimously reversed, on the law, without costs, and the motion denied.

While the record shows that plaintiffs may have demonstrated a reasonable excuse for their default in appearing at status conferences held in 2011 and 2012, plaintiffs failed to demonstrate a meritorious cause of action (see CPLR 5015 [a]; Donnelly v Treeline Cos., 66 AD3d 563 [1st Dept 2009]). The affidavit of plaintiff James C., which asserts that his injuries were proximately caused by defendants’ negligence, directly contradicts his previously-given deposition testimony that he had no recollection of the accident and therefore does not suffice to demonstrate a meritorious cause of action (cf. Beahn v New York Yankees Partnership, 89 AD3d 589, 590 [1st Dept 2011]). We further note that James C.’s affidavit was improperly submitted for the first time in reply.

Concur — Friedman, J.P., Sweeny, Acosta, DeGrasse and Gische, JJ.

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Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about September 19, 2013, which granted plaintiffs’ motion to vacate a prior dismissal of this action and *465 restore the case to the trial calendar, unanimously reversed, on the law, without costs, and the motion denied.

While the record shows that plaintiffs may have demonstrated a reasonable excuse for their default in appearing at status conferences held in 2011 and 2012, plaintiffs failed to demonstrate a meritorious cause of action (see CPLR 5015 [a]; Donnelly v Treeline Cos., 66 AD3d 563 [1st Dept 2009]). The affidavit of plaintiff James C., which asserts that his injuries were proximately caused by defendants’ negligence, directly contradicts his previously-given deposition testimony that he had no recollection of the accident and therefore does not suffice to demonstrate a meritorious cause of action (cf. Beahn v New York Yankees Partnership, 89 AD3d 589, 590 [1st Dept 2011]). We further note that James C.’s affidavit was improperly submitted for the first time in reply.

Concur — Friedman, J.P., Sweeny, Acosta, DeGrasse and Gische, JJ.

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Bluebook (online)

126 A.D.3d 464, 2 N.Y.S.3d 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-c-v-cintron-nyappdiv-2015.

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