Nurse v. Figeroux & Associates

Jan 22, 2008
Versions:47 A.D.3d 778
849 N.Y.S.2d 644

In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated July 25, 2006, which denied their motion to vacate an order of the same court (Kurtz, J.) dated May 8, 2006, granting the plaintiff‘s motion to strike the answer on the ground that the defendants failed to comply with outstanding discovery demands, upon their default in opposing the motion.

Ordered that the order is affirmed, with costs.

In order to prevail on their motion to vacate, the defendants were required to demonstrate both a reasonable excuse for their default and a meritorious defense (see Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534 [2006]; Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]). The determination of what constitutes a reasonable excuse lies within the trial court‘s discretion (see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394 [2004]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]). Although the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005) the defendants’ conclusory, undetailed, and uncorroborated claim of law office failure in this case did not amount to a reasonable excuse (see Matter of ELRAC, Inc. v Holder, 31 AD3d 636 [2006]; McClaren v Bell Atl., 30 AD3d 569 [2006]; Matter of Denton v City of Mount Vernon, 30 AD3d 600, 601 [2006]; Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]). Moreover, the defendants made no attempt to demonstrate that they had a meritorious defense to the action. Mastro, J.P., Santucci, Dillon and Angiolillo, JJ., concur.