Opinion
2007-574 Q C.
Decided July 1, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered March 14, 2007, deemed from a judgment of said court entered April 3, 2007 (see CPLR 5520 [c]; cf. CPLR 5501 [c]). The judgment, entered pursuant to an order dated July 10, 2006 which granted, on default, defendants' motion for summary judgment, dismissed the complaint. The appeal from the judgment brings up for review the order entered March 14, 2007 denying plaintiffs' motion to, inter alia, vacate the order dated July 10, 2006.
Appeal by plaintiff Marie Lyne Muller dismissed as abandoned.
Judgment, insofar as reviewed, affirmed without costs.
PRESENT: RIOS, J.P., PESCE and GOLIA, JJ.
In this action to recover damages for personal injuries, defendants moved for summary judgment dismissing the complaint on the ground that plaintiffs did not sustain a "serious injury" as defined in Insurance Law § 5102 (d). At plaintiffs' request, the motion was adjourned and marked final. On the adjourned date, plaintiffs did not submit opposition and sought a second adjournment. The Civil Court denied plaintiffs' request for a second adjournment and, by order entered July 10, 2006, granted defendants' summary judgment motion on default. Plaintiffs then moved to vacate the default, and, upon vacatur, deny the summary judgment motion. By order dated March 14, 2007, the Civil Court denied plaintiffs' motion. On April 3, 2007, a judgment was entered dismissing the complaint. A notice of appeal was filed on behalf of both plaintiffs, but plaintiff Marie Lyne Muller has abandoned the appeal.
Since plaintiff Clifford Warner failed to demonstrate a reasonable excuse for his default and failed to proffer competent medical evidence, in admissible form, establishing that he sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident, the court below did not improvidently exercise its discretion in denying the motion ( see Perez v Han Ki Man, 39 AD3d 521). Accordingly, the judgment, insofar as reviewed, is affirmed.
Rios, J.P., Pesce and Golia, JJ., concur.