Summary
In Swensen, the Second Department held that the court providently exercised its discretion in granting a motion to vacate a default where plaintiff's counsel "provided a credible and detailed explanation for his default in this matter, which included various acts of misconduct and deception by his former associate attorney who worked on plaintiff's matter" (Swensen, 89 AD3d at 925).
Summary of this case from Prime Enters. LLC v. Truck Repair of Brooklyn NY Inc.Opinion
2011-11-15
Charles SWENSEN, respondent, v. MV TRANSPORTATION, INC., et al., appellants, et al., defendants.
Zaklukiewicz Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Daniel E. Furshpan of counsel), for appellants. Laurence Jeffrey Weingrad, New York, N.Y., for respondent.
Zaklukiewicz Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Daniel E. Furshpan of counsel), for appellants. Laurence Jeffrey Weingrad, New York, N.Y., for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants MV Transportation, Inc., and Jeffrey Salley appeal from an order of the Supreme Court, Kings County (Rothenberg, J.), dated June 4, 2010, which granted the plaintiff's motion to vacate an order of the same court entered February 25, 2009, granting their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), upon the plaintiff's default in opposing the motion.
ORDERED that the order is affirmed, with costs.
To vacate his default in opposing the motion of the defendants MV Transportation, Inc., and Jeffrey Salley (hereinafter together the appellants), the plaintiff was required to demonstrate a reasonable excuse for the default in opposing the motion and a potentially meritorious opposition to the motion ( see CPLR 5015[a][1]; Ogunmoyin v. 1515 Broadway Fee Owner, LLC, 85 A.D.3d 991, 925 N.Y.S.2d 844; Legaretta v. Ekhstor, 74 A.D.3d 899, 902 N.Y.S.2d 375; Rivera v. Komor, 69 A.D.3d 833, 892 N.Y.S.2d 769; Nowell v. NYU Med. Ctr., 55 A.D.3d 573, 865 N.Y.S.2d 309). The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion ( see White v. Incorporated Vil. of Hempstead, 41 A.D.3d 709, 710, 838 N.Y.S.2d 607), and the Supreme Court has the 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 or defaults at issue ( Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114).
Here, the plaintiff's counsel provided a detailed and credible explanation for his default in this matter, which included various acts of misconduct and deception by his former associate attorney who worked on the plaintiff's matter. The plaintiff also demonstrated a potentially meritorious opposition to the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In support of his motion to vacate, the plaintiff relied on, inter alia, the affirmed medical report of the appellants' own examining neurologist who, upon examining the plaintiff on October 24, 2007, almost four years post-accident, found significant limitations in the range of motion in the cervical region of the plaintiff's spine and a significant limitation in the range of motion in the lumbar region of the plaintiff's spine ( see Artis v. Lucas, 84 A.D.3d 845, 921 N.Y.S.2d 910; Ortiz v. Orlov, 76 A.D.3d 1000, 1001, 907 N.Y.S.2d 688; Cheour v. Pete & Sals Harborview Transp., Inc., 76 A.D.3d 989, 907 N.Y.S.2d 517; Smith v. Hartman, 73 A.D.3d 736, 899 N.Y.S.2d 648; Leopold v. New York City Tr. Auth., 72 A.D.3d 906, 899 N.Y.S.2d 626). While this neurologist suggested that the limitations noted were subjective in nature, he failed to explain or substantiate the basis for his conclusion that the noted limitations were self-imposed with any objective medical evidence ( see Artis v. Lucas, 84 A.D.3d at 845, 921 N.Y.S.2d 910; Iannello v. Vazquez, 78 A.D.3d 1121, 911 N.Y.S.2d 654; Granovskiy v. Zarbaliyev, 78 A.D.3d 656, 909 N.Y.S.2d 667; cf. Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632; Bengaly v. Singh, 68 A.D.3d 1030, 1031, 890 N.Y.S.2d 352; Moriera v. Durango, 65 A.D.3d 1024, 1024–1025, 886 N.Y.S.2d 45; Torres v. Garcia, 59 A.D.3d 705, 706, 874 N.Y.S.2d 527; Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366).
Thus, contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to vacate his default.