Karamuco v Cohen

Karamuco v Cohen 2011 NY Slip Op 09598 Decided on December 27, 2011 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 December 27, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2011-01275
(Index No. 2291/10)

[*1]Astrit Karamuco, et al., appellants,

v

Oz Cohen, et al., defendants, Janel Celaj, respondent.




McGivney & Kluger, P.C., New York, N.Y. (Christine Kennedy
Flores of counsel), for appellants.
Rabinowitz & Galina, Mineola, N.Y. (Michael M. Rabinowitz
of counsel), for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of Supreme Court, Queens County (Markey, J.), entered December 23, 2010, which denied their motion to vacate a prior order of the same court dated August 10, 2010, granting, without opposition, the motion of the defendant Janel Celaj for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order is affirmed, with costs.

To vacate their default in opposing the motion of the defendant Janel Celaj for summary judgment dismissing the complaint insofar as asserted against her, the plaintiffs were required to demonstrate both a reasonable excuse for their default and a potentially meritorious opposition to the motion (see Donovan v Chiapetta, 72 AD3d 635; Aurora Loan Servs. v Grant, 70 AD3d 986). The determination of what constitutes a reasonable excuse lies within the trial court's discretion (see Zarzuela v Castanos, 71 AD3d 880; Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394). Here, the record supports the Supreme Court's determination that the plaintiffs' claim of law office failure was sufficient to excuse their failure to oppose Celaj's motion for summary judgment. However, the plaintiffs failed to come forward with any affidavits or documentary evidence of their own to demonstrate that they had a potentially meritorious opposition to Celaj's motion. Accordingly, the court providently exercised its discretion in denying the plaintiffs' motion to vacate their default.
DILLON, J.P., DICKERSON, LEVENTHAL, AUSTIN and MILLER, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court