Opinion
No. 2020-08561 Index No. 506324/17
10-05-2022
Robert F. Codrington II, appellant, v. Samuel Churcher, respondent.
Law Office of Yuriy Prakhin P.C., Brooklyn, NY (Simon Q. Ramone of counsel), for appellant. Baker, McEvoy & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent.
Law Office of Yuriy Prakhin P.C., Brooklyn, NY (Simon Q. Ramone of counsel), for appellant.
Baker, McEvoy & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated October 18, 2020. The order denied the plaintiff's motion, inter alia, pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court (Johnny Lee Baynes, J.) dated December 5, 2019, granting the defendant's motion for summary judgment dismissing the complaint, upon the plaintiff's failure to appear at oral argument.
ORDERED that the order dated October 18, 2020, is affirmed, with costs.
In March 2017, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when a motor vehicle he was operating was involved in an accident with a motor vehicle owned and operated by the defendant. The defendant moved for summary judgment dismissing the complaint. In an order dated December 5, 2019, the Supreme Court granted that motion upon the plaintiff's failure to appear at oral argument. Thereafter, the plaintiff moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate the order dated December 5, 2019, asserting an excuse of law office failure. In an order dated October 18, 2020, the court denied the plaintiff's motion. The plaintiff appeals.
To vacate the order dated December 5, 2019, the plaintiff was required to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the defendant's motion for summary judgment (see CPLR 5015[a][1]; U.S. Bank N.A. v Stathakis, 202 A.D.3d 1026; Stango v Byrnes, 200 A.D.3d 821; Garcia v City of New York, 189 A.D.3d 788, 788; Hamilton v New York Hosp. Queens, 183 A.D.3d 621, 622; Bhuiyan v New York City Health & Hosps. Corp., 120 A.D.3d 1284). The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion (see Stango v Byrnes, 200 A.D.3d at 821; Garcia v City of New York, 189 A.D.3d at 788-789; Hamilton v New York Hosp. Queens, 183 A.D.3d at 622; Lyubomirsky v Lubov Arulin, PLLC, 125 A.D.3d 614). The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim "is supported by a detailed and credible explanation of the default at issue" (Ki Tae Kim v Bishop, 156 A.D.3d 776, 777; see U.S. Bank N.A. v Stathakis, 202 A.D.3d at 1026; see also Scholem v Acadia Realty L.P., 144 A.D.3d 1012, 1013; Bhuiyan v New York City Health & Hosps. Corp., 120 A.D.3d at 1284; Sarcona v J & J Air Container Sta., Inc., 111 A.D.3d 914, 915). "[M]ere neglect is not a reasonable excuse" (OneWest Bank, FSB v Singer, 153 A.D.3d 714, 716).
The plaintiff's undetailed, conclusory, and unsubstantiated allegations of law office failure are insufficient to demonstrate a reasonable excuse for the default in this case (see Redding v JQ III Assoc., LLC, 204 A.D.3d 849; U.S. Bank N.A. v Stathakis, 202 A.D.3d at 1028; Halvatzis v Perrone, 199 A.D.3d 788; Emigrant Sav. Bank v Burke, 199 A.D.3d 652; Bank of Am., N.A. v Murjani, 199 A.D.3d 630). In light of the foregoing, we need not consider whether the plaintiff demonstrated a potentially meritorious opposition to the defendant's motion for summary judgment (see Redding v JQ III Assocs., LLC, 204 A.D.3d 849; U.S. Bank N.A. v Stathakis, 202 A.D.3d at 1026; Nationstar Mtge., LLC v Ramnarine, 172 A.D.3d 886, 887).
Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion, among other things, pursuant to CPLR 5015(a)(1) to vacate the order dated December 5, 2019.
The parties' remaining contentions are either without merit or not properly before this Court.
BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and ZAYAS, JJ., concur.