The Appellate Division affirmed the Order which denied plaintiffs' motion to vacate the earlier order that dismissed the complaint due to their default in opposing defendant's CPLR 3126(3) motion to dismiss, and their numerous failures to comply with the court's discovery orders and to appear for court conferences. Plaintiffs failed to demonstrate both an excusable default and a meritorious defense, pursuant to CPLR 5015[a]. Plaintiffs gave no reasonable excuse for their failure to oppose dismissal, their longstanding pattern of noncompliance with discovery demands and multiple court orders, or their failure to appear at scheduled court conferences. When moving for vacatur, plaintiffs failed to submit medical evidence establishing that their counsel was suffering from a mental condition which would have caused such noncompliance. Plaintiffs also failed to provide sufficient evidence of the merit of the underlying claims insofar as an independent medical examination report was submitted in place of a detailed expert affidavit. Plaintiffs' subsequent medical affidavits were improperly submitted for the first time in reply. The preference for deciding cases on the merits will not justify vacating a default judgment where the moving party has failed to satisfy its burden of establishing a reasonable excuse for the default or a meritorious case.
Liparulo v. New York City Health & Hosps. Corp., NY Slip Op 02464 (1st Dep't April 22, 2021)
