Parine v. Country Farms Equestrian Center

11 A.D.3d 440, 782 N.Y.S.2d 369, 2004 N.Y. App. Div. LEXIS 11615

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Burke, J.), dated September 17, 2003, which denied their motion, in effect, to vacate an order of the same court dated June 17, 2003, granting the motion of the defendants Country Farms Equestrian Center and Country Farms Polo, Inc., for summary judgment dismissing the complaint insofar as asserted against them, upon their default in opposing the motion.

Ordered that the order is affirmed, with costs.

To succeed on their motion, in effect, to vacate the order dated June 17, 2003, the plaintiffs were required to demonstrate a reasonable excuse for their default and a meritorious cause of action (see Lopez v City of New York, 2 AD3d 693 [2003]; Itskovich v Lichenstadter, 2 AD3d 406 [2003]; Katsnelson v ELRAC, Inc., 304 AD2d 619 [2003]). Here, the plaintiffs mistakenly filed their opposition to the motion for summary judgment with the clerk of the court instead of properly submitting it to the Special Term office. Consequently, their papers were not considered by the court at the time it determined the motion. Even if the opposition papers had been originally considered, the respondents were entitled to summary judgment since the plaintiffs failed to demonstrate the existence of a meritorious cause of action (see Church v Callanan Indus., 99 NY2d 104, 113 [2002]; Espinal v Melville Snow Contrs., 98 NY2d 136, 141 [2002]; Perkins v Cosmopolitan Care Corp., 308 AD2d 437, 439 [2003], lv denied 2 NY3d 704 [2004]; Taylor v Gannett Co., 303 AD2d 397 [2003]). Accordingly, the motion was properly denied. Santucci, J.P., Smith, S. Miller, Cozier and Fisher, JJ., concur.