Opinion
2018–11774 Claim No. 127755
02-23-2022
Leopold COX, et al., appellants, v. NEW YORK STATE THRUWAY AUTHORITY, et al., respondents.
Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellants. Letitia James, Attorney General, New York, NY (Steven C. Wu and Eric R. Haren of counsel), for respondents.
Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellants.
Letitia James, Attorney General, New York, NY (Steven C. Wu and Eric R. Haren of counsel), for respondents.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER In a claim to recover damages for personal injuries, the claimants appeal from an order of the Court of Claims (Thomas H. Scuccimarra, J.), dated June 6, 2018. The order denied the claimants’ motion to vacate an order of the same court dated November 9, 2017, directing dismissal of the claim upon the claimants’ failure to appear at a conference, and to restore their claim.
ORDERED that order dated June 6, 2018, is reversed, on the law and in the exercise of discretion, with costs, and the claimants’ motion to vacate the order dated November 9, 2017, is granted.
On January 18, 2015, the claimants allegedly sustained personal injuries when a snowplow owned by the defendant New York State Thruway Authority struck their vehicle. Thereafter, the claimants commenced this claim to recover damages for personal injuries. In an order dated November 9, 2017, the Court of Claims granted the defendants’ motion to dismiss the claim upon the claimants’ default in failing to appear at a scheduled compliance conference.
The claimants moved to vacate the November 9, 2017 order and restore their claim. In an order dated June 6, 2018, the Court of Claims denied the motion. The court found that while the claimants provided a reasonable excuse for the default, they failed to establish that they had a meritorious claim. The claimants appeal.
To vacate their default in failing to appear at the conference, the claimants were required to demonstrate both a reasonable excuse for the default and a potentially meritorious claim (see CPLR 5015[a][1] ; Brown v. State of New York, 164 A.D.3d 736, 737, 79 N.Y.S.3d 548 ; Krisztin v. State of New York, 34 A.D.3d 753, 754, 823 N.Y.S.2d 919 ). Initially, we note that the defendants do not contest the Court of Claims’ determination that the claimants provided a reasonable excuse for their default.
Contrary to the determination of the Court of Claims, on their motion to vacate their default and to restore the claim, the claimants demonstrated that they had a potentially meritorious claim. In this regard, the verified claim together with Leopold Cox's affidavit alleging that the snowplow operator was excessively speeding in dangerous, icy conditions, was sufficient to show that the snowplow operator acted in conscious "disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" ( Deleon v. New York City Sanitation Dept., 25 N.Y.3d 1102, 1105, 14 N.Y.S.3d 280, 35 N.E.3d 448 [internal quotation marks omitted]; see Vehicle and Traffic Law § 1103[b] ). In addition, the medical reports submitted by the claimants were sufficient to show that each of the claimants sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Perl v. Meher, 18 N.Y.3d 208, 217–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; LeBlanc v. Budman, 18 A.D.3d 718, 719, 795 N.Y.S.2d 756 ).
Since the claimants demonstrated that they had a potentially meritorious claim, the Court of Claims improperly denied their motion to vacate their default on this ground.
DILLON, J.P., CONNOLLY, BRATHWAITE NELSON and WOOTEN, JJ., concur.