Roche v. City of New York

88 A.D.3d 978, 931 N.Y.2d 533

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2011
• Status: Published

Opinion

In order to vacate his default in opposing the municipal defendants’ motion for summary judgment, the plaintiff was required to demonstrate both a reasonable excuse for his default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Casali v Cyran, 84 AD3d 711 [2011]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392 [2008]). Although the plaintiffs claim of law office failure can be deemed a reasonable excuse (see Kohn v Kohn, 86 AD3d 630 [2011]; Winthrop Univ. Hosp. v Metropolitan Suburban Bus Auth., 78 AD3d 685, 686 [2010]), he did not demonstrate the existence of a potentially meritorious opposition to the municipal defendants’ motion, since the record demonstrates that there is no triable issue of fact as to whether a special relationship existed between the plaintiff and the municipal defendants under the circumstances presented (see Greene v New York City Hous. Auth., 283 AD2d 458, 459 [2001]; see also Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Brown v City of New York, 73 AD3d 1113 [2010]; Feinsilver v City of New York, 277 AD2d 199 [2000]; Montague v City of New York, 194 AD2d 524 [1993]). Dillon, J.E, Balkin, Eng and Cohen, JJ., concur.