Cacciatore v. City of New York

The prior order was properly vacated upon an adequate showing that the reason plaintiffs did not appear for oral argument of Brooklyn Union’s and defendant City’s post-note of issue motions for summary judgment, after having submitted written opposition thereto, was law office failure, and that plaintiffs had been otherwise diligent in prosecuting this then-eight-year-old action (CPLR 2005; see White v Incorporated Vil. of Hempstead, 41 AD3d 709, 710 [2007]). While plaintiffs’ showing of merit was sufficient for the purpose of vacating a minor, nonprejudicial default, they failed to raise an issue of fact in response to Brooklyn Union’s prima facie showing that it never performed any work on the west side of the street where the injured 272 plaintiff fell, only the east side where the gas main is located. Plaintiffs’ engineer asserts that some of Brooklyn Union’s frequent and admitted work on the east side of the street was such as to require excavations on the west side, but he does not claim to have ever personally visited the site, much less inspected it or taken any measurements, and his affidavit is otherwise speculative and conclusory (see Murphy v Conner, 84 NY2d 969, 972 [1994]; Haberman v Cheesecake Factory Rests., Inc., 43 AD3d 392 [2007]). Concur—Andrias, J.P., Friedman, Buckley, McGuire and Moskowitz, JJ.