Delacruz v Avila

[*1] Delacruz v Avila 2006 NY Slip Op 51431(U) [12 Misc 3d 144(A)] Decided on July 17, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: GOLIA, J.P., RIOS and BELEN, JJ
2005-1619 Q C.

PEDRO DELACRUZ, Appellant,

against

YVETTE AVILA, Respondent, -and- "JOHN DOE", Defendant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered July 25, 2005. The order denied plaintiff's motion to vacate a prior order which granted on default defendant Yvette Avila's motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In order to vacate a default pursuant to CPLR 5015, a plaintiff must establish both a reasonable excuse for the default and a meritorious cause of action. While law office failure may, under certain circumstances, constitute a reasonable excuse for vacating a default, the movant must set forth detailed factual allegations which explain the reason for such failure. Plaintiff's attorney's conclusory allegation of law office [*2]
failure, to the effect that defendant's motion for summary judgment returnable on October 3, 2003 was mistakenly listed in her diary as being returnable on October 30, 2003, does not constitute a reasonable excuse for the over one year delay in making the instant motion to vacate the order entered on default. In this regard, it should be noted that it appears that on January 30, 2004, plaintiff's attorney was served with a copy of the order granting defendant's motion for summary judgment on default (Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: July 17, 2006