Oyebola v. Makuch

Sep 7, 2004
Versions:10 A.D.3d 600
781 N.Y.S.2d 455
2004 N.Y. App. Div. LEXIS 10585

In an action to recover damages for personal injuries, the plaintiff appeals from an order of Supreme Court, Queens County (Satterfield, J.), dated July 10, 2003, which, inter alia, denied that branch of her motion which was to vacate an order of the same court dated February 26, 2003, which, upon her default in opposing the motion, granted the defendants’ motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

*601Ordered that the order is affirmed, with costs.

To warrant vacatur of an order entered on default, a plaintiff must demonstrate both a reasonable excuse for the default in opposing a defendant’s motion and a meritorious cause of action (see Beale v Yepes, 309 AD2d 886 [2003]). Here, the plaintiff failed to establish that her claim of serious injury was meritorious.

In light of the forgoing, we need not reach the plaintiffs remaining contention. Smith, J.P., S. Miller, Adams, Rivera and Lifson, JJ., concur.