Garcia v Riverbay Corp.

Garcia v Riverbay Corp. 2013 NY Slip Op 08545 Decided on December 24, 2013 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 December 24, 2013
Mazzarelli, J.P., Sweeny, Moskowitz, Freedman, Clark, JJ.
11408N 307608/09

[*1]Glenda Garcia, Plaintiff-Appellant,

v

Riverbay Corporation, Defendant-Respondent.




Mallilo & Grossman, Flushing (Francesco Pomara, Jr. of
counsel), for appellant.
Malapero & Prisco, LLP, New York (Dan Quart of counsel),
for respondent.

Order, Supreme Court, Bronx County (Kibbie F. Payne, J.), entered August 14, 2012, which, in an action for personal injuries, denied plaintiff's motion to vacate a prior order granting defendant's motion for summary judgment upon plaintiff's default, unanimously affirmed, without costs.

The court exercised its discretion in a provident manner in denying the motion to vacate the default. Plaintiff failed to offer a reasonable excuse for the default, as her counsel made only conclusory assertions of having been engaged in another trial, without any support and without naming the time and dates of such engagement, the court, the judge or any other details (see Polanco v City of New York, 78 AD3d 617 [1st Dept 2010]; 22 NYCRR 125.1). Nor did counsel's conclusory statement that he was "under the impression" that plaintiff's ex parte motion for an adjournment had been granted constitute a reasonable excuse (see Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC, 95 AD3d 789, 790 [1s Dept 2012]).

Moreover, plaintiff lacks a meritorious cause of action.

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

ENTERED: DECEMBER 24, 2013

DEPUTY CLERK