Glauber v. Ekstein

In an action, inter alia, for injunctive relief, the plaintiffs appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated September 15, 2014, which denied their motion to vacate a prior order of the same court dated May 23, 2013, granting the defendant’s unopposed motion pursuant to CPLR 3211 (a) to dismiss the complaint with prejudice. Ordered that the order is affirmed, with costs. A party seeking to vacate an order entered upon his or her failure to oppose a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 813 [2012]; Karamuco v Cohen, 90 AD3d 998, 998 [2011]; Donovan v Chiapetta, 72 AD3d 635, 636 [2010]). The determination of what constitutes a reasonable excuse lies within the trial court’s discretion (see Karamuco v Cohen, 90 AD3d at 998; Donovan v Chiapetta, 72 AD3d at 636; Zarzuela v Castanos, 71 AD3d 880, 880 [2010]; Matter of Gambardella v Ortov Light., 278 AD2d 494, 495 [2000]). Here, the plaintiffs failed to demonstrate a reasonable excuse for failing to oppose the defendant’s motion pursuant to CPLR 3211 (a) to dismiss the complaint (see CPLR 5015 [a] [1]). In any event, the plaintiffs also failed to demonstrate a potentially meritorious opposition to the defendant’s motion (see Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d at 814). Accordingly, the Supreme Court properly denied the plaintiffs’ motion to vacate the order granting the defendant’s unopposed motion pursuant to CPLR 3211 (a) to dismiss the complaint with prejudice. Leventhal, J.P., Cohen, Duffy and LaSalle, JJ., concur.