A.B. Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc.

[*1] A.B. Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc. 2009 NY Slip Op 52322(U) [25 Misc 3d 137(A)] Decided on November 13, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 13, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-2129 K C.

A.B. MEDICAL SERVICES, PLLC, LVOV ACUPUNCTURE, P.C., and RW HEALTH PLUS CHIROPRACTIC, P.C. a/a/o DYNA JEAN PHILIPPE, Appellants,

against

GLI Corporate Risk Solutions, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered October 8, 2008. The order denied plaintiffs' motion to vacate a prior order which, among other things, had granted defendant's motion for summary judgment dismissing the complaint upon plaintiffs' failure to appear for oral argument.

ORDERED that the order is affirmed without costs.

To be entitled to vacatur of the order granting defendant's motion for summary judgment upon plaintiffs' failure to appear for oral argument, plaintiffs were required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for their default and a meritorious defense to defendant's motion (see St. Rose v McMorrow, 43 AD3d 1146 [2007]). Plaintiffs did not sufficiently set forth a reasonable excuse for their failure to appear on the return date of defendant's motion for summary judgment (see McClaren v Bell Atl., 30 AD3d 569 [2006]; see also Uniform Rules for Civ Ct [22 NYCRR] § 208.14). Plaintiffs' allegation of law office failure is factually insufficient (see Robinson v New York City Tr. Auth., 203 AD2d 351 [1994]), in that they failed to explain whether the normal two-part procedure for assigning a per diem attorney to cover a court appearance, as outlined in their submission to the court, was followed in its entirety. Accordingly, plaintiffs' motion to vacate the prior order was properly denied.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 13, 2009