Delvalle v. Mercedes Benz USA, LLC

May 21, 2014
Versions:117 A.D.3d 893
985 N.Y.S.2d 919
2014 NY Slip Op 3646

Danny Delvalle, Plaintiff, v Mercedes Benz USA, LLC, et al., Defendants/Third-Party Plaintiffs-Appellants. Chetum Singh et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. [985 NYS2d 919]—

In an action to recover damages for personal injuries, the defendants/third-party plaintiffs appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated May 4, 2012, which denied their motion pursuant to CPLR 5015 (a) (1) to vacate so much of an order of the same court dated March 11, 2011, as granted the cross motion of the third-party defendants Chetum Singh and Ramjit Singh for summary judgment dismissing the third-party complaint insofar as asserted against them.

Ordered that the order dated May 4, 2012, is affirmed, with costs.

“In order to vacate a default in opposing a motion pursuant to CPLR 5015 (a) (1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion” (Rocco v Family Foot Ctr., 94 AD3d 1077, 1079 [2012]; see Braynin v Dunleavy, 109 AD3d 571 [2013]; Thapt v Lutheran Med. Ctr., 89 AD3d 837 [2011]). “A motion to vacate a default is addressed to the sound discretion of the motion court” (Braynin v Dunleavy, 109 AD3d at 571; see Kohn v Kohn, 86 AD3d 630 [2011]).

Here, the defendants/third-party plaintiffs failed to demonstrate a reasonable excuse for their default in opposing the cross motion of the third-party defendants Chetum Singh and Ramjit Singh for summary judgment dismissing the third-party complaint insofar as asserted against them (see Turko v Daffy‘s, Inc., 111 AD3d 615 [2013]; Tsikotis v Pioneer Bldg. Corp., 96 AD3d 936 [2012]). In light of the defendants/third-party plaintiffs’ failure to provide a reasonable excuse for their default, we need not evaluate whether they demonstrated a potentially meritorious opposition to the cross motion (see Turko v Daffy‘s, Inc., 111 AD3d at 617; Herrera v MTA Bus Co., 100 AD3d 962, 963 [2012]). Accordingly, the Supreme Court properly denied the defendants/third-party plaintiffs’ motion to vacate so much of an order dated March 11, 2011, as granted the cross motion of the third-party defendants Chetum Singh and Ramjit Singh for summary judgment dismissing the third-party complaint insofar as asserted against them. Balkin, J.P., Dickerson, Chambers and Hall, JJ., concur.