Opinion
1183/14
01-30-2018
Donald WILLIAMS, Plaintiff v. ZORIA HOUSING LLC and Parmjit Lalli, Defendants.
David Williams, Pro Se Plaintiff David Horowitz, P.C., 171 Madison Avenue, Suite 1300, New York, New York 10016, (212) 684–3630, Attorney for Defendant
David Williams, Pro Se Plaintiff
David Horowitz, P.C., 171 Madison Avenue, Suite 1300, New York, New York 10016, (212) 684–3630, Attorney for Defendant
Francois A. Rivera, J.
By order to show cause filed on January 8, 2018 under motion sequence number four, plaintiff Donald Williams (hereinafter Williams), seeks an order pursuant to CPLR 5015 vacating an order (hereinafter the prior subject order) that dismissed the complaint based on William's failure to appear and oppose Zoria Housing LLC's (hereinafter ZHL) motion to dismiss the complaint (hereinafter the prior subject motion).
MOTION PAPERS
Williams' motion papers consist of his affidavit and six annexed exhibits labeled A through F. Exhibit A contains an envelope addressed to Stanley Williams. Exhibit B is a copy of an order dated August 7, 2016 which dismissed the instant action based on Williams' failure to appear and oppose ZHL's prior subject motion to dismiss the complaint. Exhibit C is a copy of a HIPPA compliant authorization for Williams' medical records. Exhibit D is a copy of a Queens County Criminal Court complaint in which Williams is the defendant. Exhibit E is a copy of a calendar for the month of August 2016.
Defendant ZHL has opposed the motion with an affirmation of counsel and four annexed exhibits labeled A through D. Exhibit A is ZHL's notice of appearance. Exhibit B is denominated as a good faith letter addressed to Williams and pertaining to his alleged failure to provide a HIPPA compliant medical authorizations. Exhibit C is a copy of a notice of motion by ZHL seeking dismissal as a sanction for failure to comply with discovery demands. Exhibit D is a copy of the same order annexed by Williams as exhibit B to the instant motion with notice of entry.
BACKGROUND
On January 24, 2014, Williams commenced the instant action by filing a request for poor person relief pursuant to CPLR 1101 and a summons with notice pursuant to CPLR 304 (a) with the Kings County Clerk's office (KCCO). On May 28, 2014, Williams filed a verified complaint with the KCCO. ZHL interposed a verified answer which it amended and filed with the KCCO on June 27, 2014. The verified complaint contains thirteen allegations of fact in support of a claim for defamation and negligent supervision.
By the prior subject motion filed on June 15, 2016, ZHL moved for an order pursuant to CPLR 3126 dismissing the complaint as a sanction for failure to comply with a discovery demand for a HIPPA compliant authorization. On August 7, 2016, Williams failed to appear on the return date of the prior subject motion.
By the prior subject order dated August 7, 2016, Justice Lawrence Knipel granted ZHL's request and dismissed the complaint based on Williams' default in failing to appear for oral argument and failing to submit opposition to the motion. Williams moves pursuant to CPLR 5015 (a) to vacate the prior subject order and to restore the action to active status.
LAW AND APPLICATION
In order to vacate its default in appearing at a call of the compliance conference calendar, the plaintiff is required to demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action ( 555 Prospect Associates, LLC v. Greenwich Design & Development Group Corp. , 154 AD3d 909 [2nd Dept 2017]citing, CPLR 5015[a][1] ; 22 NYCRR 202.27 [a]; Polsky v. Simon , 145 AD3d 693, 693 [2nd Dept 2016] ; Foley Inc. v. Metropolis Superstructures, Inc. , 130 AD3d 680, 680 [2nd Dept 2015] ). Whether an excuse is reasonable is a determination within the sound discretion of the Supreme Court ( 555 Prospect Associates, LLC , 154 AD3d 909 citing, Walker v. Mohammed, 90 AD3d 1034, 1034 [2nd Dept 2011], see GMAC Mtge., LLC v. Guccione, 127 AD3d 1136 [2nd Dept 2015] ).
Where, as here, a party asserts law office failure, it must provide a detailed and credible explanation of the default ( 555 Prospect Associates, LLC , 154 AD3d 909 citing, GMAC Mtge., LLC , 127 AD3d at 1138 ), as conclusory and unsubstantiated allegations of law office failure are not sufficient ( 555 Prospect Associates, LLC , 154 AD3d 909 citing, U.S. Bank N.A. v. Barr , 139 AD3d 937, 938 [2nd Dept 2016] ).
Williams' affidavit provides a reasonable and credible excuse for not appearing for oral argument on the prior subject motion, namely, that he was stuck in traffic. ZHL's motion was premised on Williams' failure to comply with ZHL's discovery demand for a HIPPA compliant medical authorization. Williams credibly swore that he had the authorization in hand and intended to provide it on the return date but was stuck in traffic. Williams also attached the requested authorization with the instant motion papers.
The Court notes that ZHL's prior subject motion lacked an adequate affirmation of its good faith effort to resolve the disclosure dispute (see 22 NYCRR 202.7 [a], [c]; Vera v. New York Elevator & Elec. Corp. , 150 AD3d 927 [2nd Dept 2017] ). This procedural deficiency provides a meritorious defense to the subject prior motion. Furthermore, the drastic remedy of striking a pleading is inappropriate absent a clear showing that the failure to comply with discovery demands is willful and contumacious (see Gray v. Tri–State Consumer Insurance Company, ––– N.Y.S.3d ––––, 2018 WL 635163, 2018 NY Slip Op. 00546 [2nd Dept 2018] ). In light of the foregoing, Williams' motion to vacate the prior subject order dismissing the complaint based on his default is granted.
CONCLUSION
Donald Williams' motion for an order pursuant to CPLR 5015 vacating the prior subject order that dismissed the complaint is granted and the matter is restored to active status.
The foregoing constitutes the decision and order of this Court.