Correa v. Ahn

Jun 13, 1994
Versions:205 A.D.2d 575
613 N.Y.S.2d 241
1994 N.Y. App. Div. LEXIS 6171

In an action to recover damages due to personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Huttner, J.), dated August 25, 1992, which denied their motion to vacate a judgment of the same court dated August 3, 1992, entered upon their default.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

CPLR 2005 was not intended to routinely excuse defaults due to law office failures (see, American Sigol Corp. v Zicherman, 166 AD2d 628). To excuse a default, a party must show both a reasonable excuse for his omission and proof of merit to his claim. Despite the fact that the defendants’ three motions for summary judgment were adjourned for a period of three months, no opposition papers to any of the motions were received prior to the adjourned return date, and the only excuse offered by the plaintiffs’ counsel, who also failed to appear to oppose the motions, was inadvertence on his part. Under these circumstances, we discern no improvident exercise of discretion in the Supreme Court’s rejection of such an unsubstantiated excuse (see, Korea Exch. Bank v Attilio, 186 AD2d 634). Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.