Opinion
2005-1065 QC.
Decided July 12, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered October 6, 2004. The order granted plaintiff's motion to vacate an order which granted, on default, defendants' motion for summary judgment and, upon such vacatur, denied defendants' motion for summary judgment dismissing the complaint.
Order affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
Plaintiff commenced this action to recover damages for serious injuries she sustained in a motor vehicle accident on May 15, 2001. In January 2004, defendants moved for summary judgment dismissing the complaint on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). In February 2004, said motion was granted on default. In August 2004, plaintiff moved to vacate the February 2004 order. Defendants opposed the motion, and by order entered October 6, 2004, the court below granted plaintiff's motion to vacate and, upon vacatur, denied defendants' motion for summary judgment dismissing the complaint.
We find that the court below did not improvidently exercise its discretion in determining that plaintiff had a reasonable excuse for her default due to her attorney's specific allegations concerning what had transpired during the litigation process. It is well settled that "[w]hether there is a reasonable excuse for a default is a discretionary, sui generis, determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been wilfulness, and the strong public policy in favor of resolving cases on the merits" ( Harcztark v. Drive Variety, Inc., 21 AD3d 876, 876-877).
The affirmed medical reports submitted by defendants in support of their motion for summary judgment made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The burden, therefore, shifted to plaintiff to raise a triable issue of fact that she sustained a serious injury ( see Gaddy v. Eyler, 79 NY2d 955).
Plaintiff, by her physician's affirmations, met her burden. The physician described plaintiff's numeric limitation of lumbar range of motion and the tests performed ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350). Moreover, the physician acknowledged plaintiff's prior history of lower back problems and stated that his medical findings indicate that the May 2001 accident "was the competent producing cause of 50% of [plaintiff's] current physical condition" which with "a reasonable degree of medical certainty . . . is permanent in nature." We note that there is no merit to defendants' gap in treatment contention since plaintiff's cessation of treatment was sufficiently explained by her physician to raise an issue of fact and survive summary judgment ( Pommells v. Perez, 4 NY3d 566). Defendants' remaining contentions have no merit.
In view of the foregoing, the court below properly granted plaintiff's motion to vacate the default and denied defendants' motion for summary judgment dismissing the complaint.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.