James C. v. Cintron

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 *465 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. Concur — Friedman, J.P., Sweeny, Acosta, DeGrasse and Gische, JJ.