Glauber v Ekstein

Glauber v Ekstein 2015 NY Slip Op 08384 Decided on November 18, 2015 Appellate Division, Second 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 November 18, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
JEFFREY A. COHEN
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.
2015-00102
(Index No. 19973/12)

[*1]Ahron Glauber, et al., appellants,

v

David Ekstein, respondent.

Avrom R. Vann, P.C., New York, N.Y., for appellants.

Lauterbach Garfinkel Damast & Hollander, LLP, New York, N.Y. (David J. Wolkenstein of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, for injunctive relief, the plaintiffs appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated September 15, 2014, which denied their motion to vacate a prior order of the same court dated May 23, 2013, granting the defendant's unopposed motion pursuant to CPLR 3211(a) to dismiss the complaint with prejudice.

ORDERED that the order is affirmed, with costs.

A party seeking to vacate an order entered upon his or her failure to oppose a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 813; Karamuco v Cohen, 90 AD3d 998, 998; Donovan v Chiapetta, 72 AD3d 635, 636). The determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Karamuco v Cohen, 90 AD3d at 998; Donovan v Chiapetta, 72 AD3d at 636; Zarzuela v Castanos, 71 AD3d 880, 880; Matter of Gambardella v Ortov Light, 278 AD2d 494, 495).

Here, the plaintiffs failed to demonstrate a reasonable excuse for failing to oppose the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint (see CPLR 5015[a][1]). In any event, the plaintiffs also failed to demonstrate a potentially meritorious opposition to the defendant's motion (see Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d at 814).

Accordingly, the Supreme Court properly denied the plaintiffs' motion to vacate the order granting the defendant's unopposed motion pursuant to CPLR 3211(a) to dismiss the complaint with prejudice.

LEVENTHAL, J.P., COHEN, DUFFY and LASALLE, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court