Thursday, January 8, 2009

Failing to Support Law Office Failure Claim -- Vacatur of Plaintiff's Default on Insurer's Summary Judgment Motion Reversed

Acupuncture Healthcare Plaza, P.C. a/a/o Juri Badovich v. Zurich Ins. Co.

(App. Term, 2nd Dept., decided 12/31/2008)

Zurich moved for summary judgment and plaintiff's counsel neither submitted any opposition papers nor appeared on the adjourned motion date. On plaintiff's motion default, Kings Civil granted Zurich's motion. Plaintiff moved to vacate the order entered upon its motion default and, upon vacatur, to deny Zurich's motion. Plaintiff's counsel alleged in the moving papers that the default was due to law office failure. The Civil Court granted plaintiff's motion, vacated its previous order, and denied Zurich's motion for summary judgment. Zurich appealed.

In REVERSING the order vacating plaintiff's motion default and denying Zurich's motion for summary judgment, the Appellate Term, Second Department, held:
To be relieved of its default, plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). The conclusory, undetailed and uncorroborated claim of law office failure did not amount to a reasonable excuse (see Nurse v Figeroux & Assoc., 47 AD3d 778 [2008]). Plaintiff's counsel offered no explanation in the motion papers as to why he failed to submit written opposition to the motion or appear on the adjourned date of the motion. Accordingly, the order, insofar as appealed from, is reversed and so much of plaintiff's motion as sought to vacate the order entered upon its default and, upon such vacatur, to deny defendant's motion for summary judgment is denied.
Three strikes. Not opposing. Not appearing. Not explaining. Summary judgment to Zurich reinstated.

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