Karamuco v. Cohen

90 A.D.3d 998, 934 N.Y.2d 855

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2011
• Status: Published

Opinion

To vacate their default in opposing the motion of the defendant Janel Celaj for summary judgment dismissing the complaint insofar as asserted against her, the plaintiffs were required to demonstrate both a reasonable excuse for their default and a potentially meritorious opposition to the motion (see Donovan v Chiapetta, 72 AD3d 635 [2010]; Aurora Loan Servs. v Grant, 70 AD3d 986 [2010]). The determination of what constitutes a reasonable excuse lies within the trial court’s discretion (see Zarzuela v Castanos, 71 AD3d 880 [2010]; Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394 [2004]). Here, the record supports the Supreme Court’s determination that the plaintiffs’ claim of law office failure was sufficient to excuse their failure to oppose Celaj’s motion for summary judgment. However, the plaintiffs failed to come forward with any affidavits or documentary evidence of their own to demonstrate that they had a potentially meritorious opposition to Celaj’s motion. Accordingly, the court providently exercised its discretion in denying the plaintiffs’ motion to vacate their default. Dillon, J.R, Dickerson, Leventhal, Austin and Miller, JJ., concur.