Opinion
2014-06-25
Sherry GARCIA, appellant, v. Kenneth J. SHAW, Jr., respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Sher, J.), dated May 29, 2013, which denied her motion, in effect, to vacate an order of the same court entered February 18, 2010, granting the defendant's unopposed motion for summary judgment dismissing the complaint, and a judgment entered thereon, and thereupon to deny the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order dated May 29, 2013, is affirmed, with costs.
A party seeking to vacate an order entered upon his or her failure to oppose a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion ( seeCPLR 5015[a][1]; Santos v. Penske Truck Leasing Co., 105 A.D.3d 1029, 964 N.Y.S.2d 207;Political Mktg., Int'l, Inc. v. Jaliman, 67 A.D.3d 661, 661–662, 888 N.Y.S.2d 552). “A motion to vacate a default is addressed to the sound discretion of the court” ( Vujanic v. Petrovic, 103 A.D.3d 791, 792, 961 N.Y.S.2d 210). Here, the Supreme Court did not improvidently exercise its discretion in refusing to accept the plaintiff's explanation for failing to oppose the defendant's motion ( see Byers v. Winthrop Univ. Hosp., 100 A.D.3d 817, 819, 955 N.Y.S.2d 105;White v. Daimler Chrysler Corp., 44 A.D.3d 651, 651–652, 843 N.Y.S.2d 168;cf. Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389, 392, 850 N.Y.S.2d 629). Accordingly, we need not address the issue of whether the plaintiff demonstrated a potentially meritorious opposition to the motion ( see Silva v. Honeydew Cab Corp., 116 A.D.3d 691, 983 N.Y.S.2d 298).