Yepez v. Damico

Appellate Division of the Supreme Court of New York

Yepez v. Damico

239 A.D.2d 412, 660 N.Y.S.2d 984, 1997 N.Y. App. Div. LEXIS 5103

Appellate Division of the Supreme Court of the State of New York·Decided May 12, 1997·Published·Cited by 3 cases

Opinion

In a negligence action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated March 28, 1996, which denied their motion to vacate an order of the same court dated April 20, 1995, entered upon the plaintiffs’ default in responding thereto, granting the defendant’s motion to dismiss the complaint due to the plaintiffs’ failure to comply with the court’s discovery directives.

Ordered that the order is affirmed, with costs.

The plaintiffs offered no evidence that they complied with the demands for authorizations contained in a preliminary conference order, no reasonable excuse for their failure to respond to the motion to dismiss, and no excuse for the lengthy delay in bringing the present motion (see, CPLR 5015 [a] [1]; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831; Habacht v Caroccia, 133 AD2d 338; Association for Children with Learning Disabilities v Zafar, 115 AD2d 580; La Buda v Brookhaven Mem. Hosp. Med. Ctr., 98 AD2d 711). Furthermore, the plaintiffs’ purported affidavits of merit, which contain only conclusory assertions, are inadequate to show that their claim has merit (see, Terranova v Gallagher Truck Ctr., 121 AD2d 621). Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.

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In a negligence action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated March 28, 1996, which denied their motion to vacate an order of the same court dated April 20, 1995, entered upon the plaintiffs’ default in responding thereto, granting the defendant’s motion to dismiss the complaint due to the plaintiffs’ failure to comply with the court’s discovery directives.

Ordered that the order is affirmed, with costs.

The plaintiffs offered no evidence that they complied with the demands for authorizations contained in a preliminary conference order, no reasonable excuse for their failure to respond to the motion to dismiss, and no excuse for the lengthy delay in bringing the present motion (see, CPLR 5015 [a] [1]; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831; Habacht v Caroccia, 133 AD2d 338; Association for Children with Learning Disabilities v Zafar, 115 AD2d 580; La Buda v Brookhaven Mem. Hosp. Med. Ctr., 98 AD2d 711). Furthermore, the plaintiffs’ purported affidavits of merit, which contain only conclusory assertions, are inadequate to show that their claim has merit (see, Terranova v Gallagher Truck Ctr., 121 AD2d 621). Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.

Yepez v. Damico, 239 A.D.2d 412, 660 N.Y.S.2d 984, 1997 N.Y. App. Div. LEXIS 5103 (N.Y. Ct. App. 1997).

Pincite

239 A.D.2d 412 (Yepez v. Damico) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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