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DeFazio v. Berley Realty Corp.

259 A.D.2d 266 Court N.Y. App. Div. Decision date 1999-03-02 English

Contents

Majority

p. 266
Michael DeFazio et al., Appellants, v Berley Realty Corp. et al., Respondents, et al., Defendants, et al., Third-Party Plaintiff. Supermarkets General Corporation, Third-Party Defendant-Respondent, et al., Third-Party Defendant. (And a Second Third-Party Action.)
[686 NYS2d 10]

—Order, Supreme Court, New York County (Richard Braun, J.), entered on or about December 15, 1997, which denied plaintiffs’ motion to renew and upon renewal to vacate a prior order entered upon their default granting defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The IAS Court properly denied plaintiffs’ motion to renew (see, Silverman v Leucadia Inc., 159 AD2d 254 ). In any event, on the merits, plaintiffs failed to establish either a reasonable excuse for their default or that their claim was meritorious (see, Goncalves v Stuyvesant Dev. Assocs., 232 AD2d 275 ). Plaintiffs’ affidavit of merit, containing little else but conclusory allegations, failed to make a sufficient showing that the alleged assault was foreseeable, or that it was proximately caused by some breach by defendants of a duty owed by them to plaintiffs (compare., Bonano v S.Z. Realty Corp., 256 AD2d 268 ). Concur — Nardelli, J. P., Wallach, Lerner and Rubin, JJ.

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