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Lopez v. Tierney Courtney O.H. Door

Appellate Division of the Supreme Court of New York, Second Department
Jun 7, 2004
8 A.D.3d 347 (N.Y. App. Div. 2004)

Opinion

2003-11331.

Decided June 7, 2004.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated November 12, 2003, which denied their motion to vacate an order of the same court dated April 28, 2003, granting the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them upon the plaintiffs' default in opposing the motions.

Alan M. Sanders, LLC (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellants.

Mulholland, Minion Roe, Williston Park, N.Y. (Kevin McKniff of counsel), for respondent Mercy Medical Center.

Before: MYRIAM J. ALTMAN, J.P. SONDRA MILLER ROBERT W. SCHMIDT BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

On their motion to vacate a prior order granting the defendants' separate motions for summary judgment dismissing the complaint, upon the plaintiffs' default in opposing the motions, the plaintiffs were required establish both a reasonable excuse for the default and a meritorious cause of action ( see Itskovich v. Lichenstadter, 2 A.D.3d 406; Beale v. Yepes, 309 A.D.2d 886; Sicari v. Hung Yuen Wong, 286 A.D.2d 489). Counsel's conclusory and unsubstantiated assertion that the defendants withdrew their separate motions for summary judgment was insufficient to excuse the plaintiffs' default in opposing those motions ( see Wechsler v. First Unum Life Ins. Co., 295 A.D.2d 340; Flomenhaft v. Baron, 281 A.D.2d 389). Furthermore, the complaint and bill of particulars, verified by the injured plaintiff, failed to detail the defendants' acts of negligence so as to establish a meritorious cause of action ( cf. Salch v. Paratore, 60 N.Y.2d 851; see Kubick v. Ballback, 231 A.D.2d 684). In any event, we note that the defendants made a prima facie showing of their entitlement to judgment as a matter of law in their separate motions for summary judgment, and the plaintiffs will not be able to make out a prima facie case in light of a prior order of the Supreme Court precluding them from offering expert testimony at trial ( see O'Brien v. Reich, 290 A.D.2d 544).

The plaintiffs' remaining contentions regarding that preclusion order are not properly before us on this appeal.

ALTMAN, J.P., S. MILLER, SCHMIDT and COZIER, JJ., concur.


Summaries of

Lopez v. Tierney Courtney O.H. Door

Appellate Division of the Supreme Court of New York, Second Department
Jun 7, 2004
8 A.D.3d 347 (N.Y. App. Div. 2004)
Case details for

Lopez v. Tierney Courtney O.H. Door

Case Details

Full title:LUIS LOPEZ, ET AL., appellants, v. TIERNEY COURTNEY OVERHEAD DOOR SALES…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 7, 2004

Citations

8 A.D.3d 347 (N.Y. App. Div. 2004)
777 N.Y.S.2d 721

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