Thapt v. Lutheran Medical Center, 89 A.D.3d 837

To vacate their default in opposing the motion of the defendant Ayman Shahin for summary judgment dismissing the complaint insofar as asserted against him, the plaintiffs were required to demonstrate a reasonable excuse for not opposing the motion and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Bazoyah v Herschitz, 79 AD3d 1081, 1081-1082 [2010]). The Supreme Court providently rejected the plaintiffs’ excuse of law office failure, as the record shows that the alleged mistake was not isolated, but rather part of a pattern of willful delay and default (see Santiago v New York City Health & Hosps. Corp., 10 AD3d 393 [2004]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]). Moreover, the Supreme Court properly determined that the conclusory affidavit of merit presented by the plaintiffs was insufficient to establish a potentially meritorious opposition to the motion (see Donovan v Chiapetta, 72 AD3d 635, 636 [2010]).

Accordingly, upon renewal, the Supreme Court properly adhered to its original determination denying the plaintiffs’ motion to vacate their default. Rivera, J.P., Eng, Belen and Austin, JJ., concur.

Case Details

Case Name: Thapt v. Lutheran Medical Center

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Nov 9, 2011

Citations: 89 A.D.3d 837; 932 N.Y.S.2d 346; 932 N.Y.2d 346

Court Abbreviation: N.Y. App. Div.