Roche v City of New York
2011 NY Slip Op 07621 [88 AD3d 978]
October 25, 2011
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 7, 2011

Edzer Roche, Appellant,
City of New York et al., Respondents, et al., Defendants.

[*1] White, Cirrito & Nally, LLP, Hempstead, N.Y. (James P. Nally of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Karen M. Griffin of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), dated August 16, 2010, which denied his motion to vacate an order of the same court dated April 1, 2010, granting the motion of the defendants City of New York and New York City Department of Corrections for summary judgment dismissing the complaint insofar as asserted against them, upon his default in opposing the motion.

Ordered that the order dated August 16, 2010, is affirmed, with costs.

In order to vacate his default in opposing the municipal defendants' motion for summary judgment, the plaintiff was required to demonstrate both a reasonable excuse for his default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Casali v Cyran, 84 AD3d 711 [2011]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392 [2008]). Although the plaintiff's claim of law office failure can be deemed a reasonable excuse (see Kohn v Kohn, 86 AD3d 630 [2011]; Winthrop Univ. Hosp. v Metropolitan Suburban Bus Auth., 78 AD3d 685, 686 [2010]), he did not demonstrate the existence of a potentially meritorious opposition to the municipal defendants' motion, since the record demonstrates that there is no triable issue of fact as to whether a special relationship existed between the plaintiff and the municipal defendants under the circumstances presented (see Greene v New York City Hous. Auth., 283 AD2d 458, 459 [2001]; see also Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Brown v City of New York, 73 AD3d 1113 [2010]; Feinsilver v City of New York, 277 AD2d 199 [2000]; Montague v City of New York, 194 AD2d 524 [1993]). Dillon, J.P., Balkin, Eng and Cohen, JJ., concur.