Philippi v. Metropolitan Transportation Authority

16 A.D.3d 654, 791 N.Y.S.2d 444, 2005 N.Y. App. Div. LEXIS 3312

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kdtzes, J.), dated February 20, 2004, which denied his motion pursuant to CBLR 5015 (a) (1) to vacate a prior order of the same court dated September 25, 2003, granting, without opposition, the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs motion to vacate his default in opposing the defendants’ motion for summary judgment (see CPLR 5015 [a] [1]). The plaintiff failed to demonstrate a reasonable excuse for the default. The plaintiffs attorney’s unsubstantiated denial of receipt of the defendants’ motion was insufficient to rebut the affirmation of service and the presumption of receipt (see Platonov v Sciabarra, 305 AD2d 651 [2003]; Truscello v Olympia Constr., 294 AD2d 350, 351 [2002]). Moreover, the plaintiff failed to establish, beyond speculation, the existence of a meritorious claim (see Rosado v Economy El. Co., 236 AD2d 598 [1997]). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs motion to vacate. H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.