Opinion
Index No. 507543/2022
03-11-2024
SECRET JOSEPH, Plaintiff, v. QUICK PAPER AND PLASTIC CORP. and RUBERT FRANCIS CRISPIN, Defendants.
Unpublished Opinion
DECISION & ORDER
Ingrid Joseph, Judge
The following e-filed papers read herein- NYSCEF Doc Nos.
Notice of Motion/Affirmation/Exhibits Annexed....... 26-32
Affirmation in Opposition/Exhibits Annexed............ ........... 34-37
Reply Affirmation................................................41
In this matter, Defendants Quick Paper and Plastic Corp. and Rubert Francis Crispin (collectively, "Defendants") move, pursuant to CPLR 2221, for leave renew and reargue Plaintiff Secret Joseph's ("Plaintiff) motion for summary judgment and the Court's decision dated October 31, 2022; and upon reargument, vacating, modifying or clarifying the decision (Mot Seq No 2) Plaintiff opposes the motion.
This action arises out of motor vehicle accident that occurred on May 11,202I, involving In Plaintiffs vehicle and Defendant Quick Paper and Plastic Corp.'s vehicle, which was operated by Defendant Rubert Francis Crispin. Plaintiff moved for partial summary judgment on the issue of liability on the grounds that Plaintiff was at a complete stop when Defendants' vehicle collided with the rear of Plaintiff s vehicle (Mot. Seq. No.). In opposition, Defendants argued that (a) the only evidence submitted by Plaintiff was a- self-serving affidavit, (b) the motion was premature, and (c) Plaintiff reversed into Defendants' vehicle, which was at a stop at the time of impact' creating an unavoidable emergency situation. In reply, Plaintiff claimed, in part, that the affidavit of Defendant Crispin should not be considered because the translator failed to set forth her proficiency in Spanish or her qualifications for translating legal documents from Spanish to English. Plaintiffs motion was returnable on October 26, 2022 and after Defendants' counsel failed to appear for oral argument, the Court granted Plaintiffs motion on default in an order dated October 31, 2022. Defendants now seek to renew and reargue Plaintiffs motion.
In deciding Plaintiffs motion, Defendants contend that the Court overlooked and/or misapprehended the meritorious claims and defenses that were contained in Defendants' opposition papers, which provided a non-negligent explanation for the accident and created a triable issue of fact. Moreover, Defendants argue that counsel was not given adequate notice of the scheduled oral argument and believed, in good faith, that the motion had been or would be administratively adjourned. Defendants ask that the Court vacate or modify its order granting Plaintiff summary judgment or, alternatively, deny Plaintiffs motion with leave to renew upon the conclusion of discovery.
In opposition to Defendants' present motion, Plaintiff contends that Defendants' request for leave to renew pursuant to CPLR 2221 is inapplicable to this case since the motion for summary judgment was fully briefed and Defendants have not proffered any new facts or changes in the law. Likewise, Plaintiff argues that Defendants' request for re argument is mis~laced since the Court did not misunderstand, misconstrue or overlook anything in rendering its determination. With respect to vacatur of their default, Plaintiff alleges that Defendants have not put forth a reasonable excuse or a meritorious defense.
In their reply, Defendants argue that their default was not intentional and was due to a clerical oversight. They further argue that they have established a meritorious defense and raised an issue of fact as to whether Plaintiff was the sole proximate cause of the accident.
The crux of Defendants' argument is that the Court overlooked their opposition by granting Plaintiffs motion on default. What Defendants are really seeking is the vacatur of their default in failing to appear for oral argument. Thus, while Defendants move pursuant to CPLR 2221, their argument in fact lies within CPLR 5015. To vacate a default entered after a party's failure to appear at oral argument, that party is "required to demonstrate a reasonable excuse for [its] default and a potentially meritorious opposition to each motion (Rudsky v Schechtman, 219 A.D.3d 1453, 1454 [2d Dept 2023]; CPLR 5015[a][1]). "The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion, and the court has discretion to accept law office failure as a reasonable excuse 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 [2d Dept 2017] [internal citations omitted]).
Defendants' counsel attempts to excuse their failure to appear by generally referencing the practices of the Courts, without arguing that any were previously exercised by or applicable to this Part. For instance, counsel states that courts have administratively adjourned appearances "when a link is not provided in advance of a conference" (NYSCEF Doc No. 27, ¶¶11; emphasis added). Merriam-Webster defines the phrase "in advance" as "before a deadline or an anticipated event.'' Counsel acknowledges that a notice was posted to NSYCEF the day before the return date with the following description: "Motion Day Team's Link" (id. at ¶10; see also NYSCEF Doc No. 20). Incredibly, counsel argues that the "link was provided less than 24 hours prior to the oral argument and without warning" (id. at ¶11). Defendants' counsel further attempts to lay blame on this Court for failing to send the link "as a Microsoft Teams invite or an invite to any other virtual platform that has been customarily used by the Courts," while recognizing that the link was embedded in the notice (id). Curiously, Defendants' counsel states that his office did not "process or calendar this link or appearance until the next day . . . when incoming mail from the previous day was sorted and assigned" (id. at ¶12). However, notifications that are posted to NYSCEF are not sent via snail mail; instead, they are sent electronically to the email addresses of the attorneys of record on NYSCEF. Thus, rather than setting forth allegations of credible law office failure, the arguments proffered by Defendants' counsel really pertain to "court failure."
Merriam-Webster com Dictionary, in advance [https://www.merriam-Webster.com/dictionary/in%2advane])
The Court's notice is provided as a courtesy. In fact, Part 83's rules advise parties to ''check e-courts to verify appearance dates'' (NYSCEF Doc No. 20) since it would be unfeasible and unreasonable to expect the Court to apprise every party on every case of every future appearance.
Accordingly, the Court finds that no reasonable excuse was provided, and the Court need not consider whether Defendants demonstrated a meritorious opposition to Plaintiffs motion (Rudsky, 219 A.D.3d at 1454-55 [finding that counsels failure to appear at oral argument because counsel was unaware that it had been scheduled was unreasonable under the circumstances])
Accordingly, it is hereby
ORDERED, that Defendants' motion (Mot. Seq. No.2) is denied in its entirety. All other issues not addressed herein are without merit or moot.
This constitutes the decision and order of the Court.