Kassiano v Palm Mgt. Corp.

Kassiano v Palm Mgt. Corp. 2012 NY Slip Op 03558 Decided on May 8, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 8, 2012
Mazzarelli, J.P., Saxe, Moskowitz, Renwick, Freedman, JJ.
7573 308735/10

[*1]Marcelino Kassiano, et al., Plaintiffs-Appellants,

v

Palm Management Corporation, et al., Defendants-Respondents.




Thomas D. Wilson, P.C., Brooklyn (Thomas D. Wilson of
counsel), for appellants.
Carroll, McNulty & Kull LLC, New York (Emilio F. Grillo of
counsel), for respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 1, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion to vacate an order which, upon plaintiffs' default, granted defendants' motion for leave to amend their answer to assert a defense based on the exclusivity provisions of the Workers' Compensation Law and to dismiss the complaint based on that defense, unanimously affirmed, without costs.

A plaintiff seeking to vacate a default in responding to a motion to dismiss pursuant to CPLR 5015(a)(1) must proffer both a reasonable excuse for the default and a meritorious cause of action (see Brown v Suggs, 38 AD3d 329, 330 [2007]). "Law office failure may constitute a reasonable excuse for a default" (Goodwin v New York City Hous. Auth., 78 AD3d 550, 551 [2010]; see CPLR 2005).

However, on the merits, defendants' motion was supported by evidence showing that plaintiff Marcelino Kassiano was injured during the course of his employment by Palm West Corporation, that he actually received workers' compensation benefits, and that the other Palm defendants are part of a single integrated corporation for purposes of the Workers' Compensation Law (see Carty v East 175th St. Hous. Dev. Fund Corp., 83 AD3d 529 [2011]; Paulino v Lifecare Transp., 57 AD3d 319 [2008]). In support of their motion to vacate, plaintiffs offered no basis for finding that their claims are not barred by Workers' Compensation Law
§ 11.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 8, 2012

CLERK