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Donovan v. Chiapetta

Appellate Division of the Supreme Court of New York, Second Department
Apr 6, 2010
72 A.D.3d 635 (N.Y. App. Div. 2010)

Opinion

No. 2009-07396.

April 6, 2010.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Baiter, J.), dated June 10, 2009, which denied her motion to vacate an order of the same court dated December 4, 2008, granting the defendant's unopposed motion to dismiss the complaint for failure to comply with certain discovery demands.

Annette G. Hasapidis, South Salem, N.Y., for appellant.

Harter Secrest Emery LLP, Rochester, N.Y. (Richard E. Alexander of counsel), for respondent.

Before: Mastro, J.P., Santucci, Dickerson, Belen and Austin, JJ., concur.


Ordered that the order dated June 10, 2009, is affirmed, with costs.

In order to vacate her default in opposing the defendant's prior motion to dismiss the complaint, a plaintiff is generally required to demonstrate both a reasonable excuse for her default and a meritorious cause of action ( see Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534; Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Costanza v Gold, 12 AD3d 551, 552). The determination of what constitutes a reasonable excuse lies within the court's discretion ( see Santiago v New York City Health Hosps. Corp., 10 AD3d 393, 394; Roussodimou v Zafiriadis, 238 AD2d 568, 569; Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527). The plaintiff failed to adequately explain her failure to oppose the defendant's prior motion to dismiss the complaint, and the conclusory statements in the affidavit of her medical expert were insufficient to demonstrate the existence of a meritorious cause of action.


Summaries of

Donovan v. Chiapetta

Appellate Division of the Supreme Court of New York, Second Department
Apr 6, 2010
72 A.D.3d 635 (N.Y. App. Div. 2010)
Case details for

Donovan v. Chiapetta

Case Details

Full title:ANTOINETTE DONOVAN, Appellant, v. NICK CHIAPETTA, Respondent

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

Date published: Apr 6, 2010

Citations

72 A.D.3d 635 (N.Y. App. Div. 2010)
2010 N.Y. Slip Op. 2915
897 N.Y.S.2d 908

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