Tatarinova v. Boo

Tatarinova v Boo (2014 NY Slip Op 05321)

Tatarinova v Boo

2014 NY Slip Op 05321

Decided on July 16, 2014

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 July 16, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
L. PRISCILLA HALL
PLUMMER E. LOTT
LEONARD B. AUSTIN
COLLEEN D. DUFFY, JJ.

2013-03241
(Index No. 34297/08)

[*1]Ludmila Tatarinova, et al., appellants,

v

Kenneth James Boo, Jr., et al., respondents.

Gary Tsirelman, P.C., Brooklyn, N.Y. (Stefan Belinfanti of counsel), for appellants.

Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rothenberg, J.), dated January 3, 2013, which denied their motion to vacate a prior order of the same court dated December 1, 2011, granting the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Ludmilla Tatarinova did not sustain a serious injury within the meaning of Insurance Law § 5102(d), upon their failure to oppose the defendants' motion.

ORDERED that the order dated January 3, 2013, is affirmed, with costs.

A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Santos v Penske Truck Leasing Co., 105 AD3d 1029; Political Mktg., Int'l, Inc. v Jaliman, 67 AD3d 661, 661-662). "A motion to vacate a default is addressed to the sound discretion of the court" (Vujanic v Petrovic, 103 AD3d 791, 792). Here, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion to vacate their default based on their failure to make the requisite showing.

MASTRO, J.P., HALL, LOTT, AUSTIN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court