John E. Rugieri v Marie Bannister

Rugieri v Bannister 2006 NY Slip Op 05159 [7 NY3d 742] June 29, 2006 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 30, 2006

[*1] John E. Rugieri et al., as Guardians of Joseph Rugieri, Respondents,
v
Marie Bannister et al., Appellants, et al., Defendant.

Decided June 29, 2006

Rugieri v Bannister, 22 AD3d 299, modified.

APPEARANCES OF COUNSEL

Carol R. Finocchio, New York City, for Marie Bannister and another, appellants.

O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Michael T. Reagan of counsel), for Leann Cheek, appellant.

Seligson, Rothman & Rothman, New York City (Martin S. Rothman of counsel), for respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant Cheek against the plaintiffs, by granting defendant Cheek's motion for summary judgment [*2]dismissing the complaint as against her and, as modified, affirmed, with costs to the plaintiffs against the Bannister defendants. The certified question should be answered in the negative.

Because plaintiffs did not establish a triable issue of fact regarding defendant Leann Cheek's alleged negligence, the Appellate Division erred in reversing Supreme Court's grant of Cheek's motion for summary judgment. The Appellate Division, however, did not abuse its discretion in vacating the judgments and reinstating the complaint as against the Bannister defendants since plaintiffs proffered a reasonable excuse for their default and facts indicating a meritorious cause of action (see CPLR 5015 [a] [1]; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 832-833 [1987]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). On remittal to Supreme Court, the parties are left to litigate the motion pending at the time the default judgment was entered.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, etc.