Opinion
2014-03733
07-01-2015
Marleny ESTRADA, appellant, v. Rodney M. SELMAN, et al., respondents.
Omrani & Taub, P.C. (James L. Forde, Eastchester, N.Y., of counsel), for appellant. Sobel Law Group, LLC, Huntington, N.Y. (Aaron C. Gross of counsel), for respondents.
Omrani & Taub, P.C. (James L. Forde, Eastchester, N.Y., of counsel), for appellant.
Sobel Law Group, LLC, Huntington, N.Y. (Aaron C. Gross of counsel), for respondents.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Butler, J.), entered February 11, 2014, which denied her motion to vacate an order of the same court dated January 7, 2013, granting the defendants' motion for summary judgment dismissing the complaint upon her failure to oppose the motion.
ORDERED that the order entered February 11, 2014, is reversed, on the facts and in the exercise of discretion, with costs, the plaintiff's motion to vacate the order dated January 7, 2013, is granted, the order dated January 7, 2013, is vacated, and the matter is remitted to the Supreme Court, Queens County, for a new determination, on the merits, of the defendants' motion for summary judgment dismissing the complaint.
To vacate an order made upon a plaintiff's failure to oppose a motion, the plaintiff is required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a] [1] ; Hogan v. Schwartz, 119 A.D.3d 650, 651, 990 N.Y.S.2d 67 ; Silva v. Honeydew Cab Corp., 116 A.D.3d 691, 983 N.Y.S.2d 298 ; Herrera v. MTA Bus Co., 100 A.D.3d 962, 963, 954 N.Y.S.2d 631 ; Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114 ). Here, the plaintiff's counsel offered a detailed and credible excuse of law office failure, which, under the circumstances, should have been deemed adequate to excuse the plaintiff's default (see CPLR 2005 ; Lyubomirsky v. Lubov Arulin, PLLC, 125 A.D.3d 614, 3 N.Y.S.3d 377 ; Oller v. Liberty Lines Tr., Inc., 111 A.D.3d 903, 904, 975 N.Y.S.2d 768 ; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 ). Furthermore, the plaintiff's submissions in support of her motion established that she had a potentially meritorious opposition to the defendants' motion for summary judgment (see Perl v. Meher, 18 N.Y.3d 208, 217–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; Filsaime v. Nyarko–Brentuo, 111 A.D.3d 598, 974 N.Y.S.2d 280 ).
Accordingly, the plaintiff's motion to vacate a prior order of the same court dated January 7, 2013, should have been granted, and we remit the matter to the Supreme Court, Queens County, for a new determination of the defendants' motion for summary judgment on the merits.