James C. v. Cintron ( 2015 )

James C. v Cintron (2015 NY Slip Op 01887)

James C. v Cintron

2015 NY Slip Op 01887

Decided on March 10, 2015

Appellate Division, First 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 March 10, 2015
Friedman, J.P., Sweeny, Acosta, DeGrasse, Gische, JJ.

14451 24209/05

[*1] James C., an Infant by His Mother and Natural Guardian Eileen C., et al., Plaintiffs-Respondents,

v

Tomas Cintron, et al., Defendants-Appellants.

Giuliano McDonnell & Perrone LLP, New York (Virginia A. Harper of counsel), for appellants.

Berkowitz & Vargas, P.C., New York (Andrew D. Weitz of counsel), for respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about September 19, 2013, which granted plaintiffs' motion to vacate a prior dismissal of this action and restore the case to the trial calendar, unanimously reversed, on the law, without costs, and the motion denied.

While the record shows that plaintiffs may have demonstrated a reasonable excuse for their default in appearing at status conferences held in 2011 and 2012, plaintiffs failed to demonstrate a meritorious cause of action (see CPLR 5015[a]; Donnelly v Treeline Cos., 66 AD3d 563 [1st Dept 2009]). The affidavit of plaintiff James C., which asserts that his injuries were proximately caused by defendants' negligence, directly contradicts his previously-given deposition testimony that he had no recollection of the accident and therefore does not suffice to demonstrate a meritorious cause of action (cf. Beahn v New York Yankees Partnership, 89 AD3d 589, 590 [1st Dept 2011]). We further note that James C.'s affidavit was improperly submitted for the first time in reply.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 10, 2015

CLERK