Opinion
2011-09-20
John DAVIES, appellant,v.Jennifer BARANOVICH, et al., respondents.
John Fazzini, P.C., Huntington Station, N.Y., for appellant.Scalzi & Nofi, PLLC, Hicksville, N.Y. (Vincent J. Nofi of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated November 24, 2009, which denied his motion pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court dated February 26, 2008, granting the defendants' unopposed motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.
ORDERED that the order is affirmed, with costs.
The plaintiff failed to demonstrate a reasonable excuse for his default in opposing the defendants' motion pursuant to CPLR 3216 to dismiss the complaint ( see Bazoyah v. Herschitz, 79 A.D.3d 1081, 913 N.Y.S.2d 769). He also failed to demonstrate a potentially meritorious opposition to the defendants' motion ( id. at 1082, 913 N.Y.S.2d 769), as he failed to “establish a ... justifiable excuse for his failure to timely file a note of issue and ... meritorious cause of action” ( Umeze v. Fidelis Care N.Y., 17 N.Y.3d 751, 751, 929 N.Y.S.2d 67, 952 N.E.2d 1060; see Gache v. Incorporated Vil. of Freeport, 202 A.D.2d 470, 470–471, 609 N.Y.S.2d 42). Accordingly, the Supreme Court properly denied his motion pursuant to CPLR 5015(a)(1) to vacate the prior order granting the defendants' motion.
RIVERA, J.P., FLORIO, ENG, HALL and COHEN, JJ., concur.