Opinion
No. 2011–2278 QC.
2014-06-13
Jose VELOZ, Appellant, v. DelRoy A. CHRISTIE, Respondent.
Present: PESCE, P.J., SOLOMON and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), dated June 10, 2011. The order, insofar as appealed from, upon granting the branch of plaintiff's motion seeking to open his default in opposing a prior motion by defendant for leave to renew and reargue the branch of defendant's prior motion seeking to vacate a default judgment, which prior renewal and reargument motion had been determined by orders of the same court entered December 16, 2010 (Terrence C. O'Connor, J.) and January 20, 2011 (Anna Culley, J.), denied the branches of plaintiff's motion seeking to vacate (1) so much of the order entered December 16, 2010 as had granted, on default, defendant's renewal and reargument motion to the extent of setting the matter down for a traverse hearing and for final disposition of the motion, and (2) in effect, so much of the order entered January 20, 2011 as, after the traverse hearing, had vacated the default judgment and permitted defendant to serve an answer. Plaintiff's appeal from the stated portions of the order dated June 10, 2011 brings up for review so much of that order as granted the branch of plaintiff's motion seeking to open plaintiff's default in opposing defendant's renewal and reargument motion (see Parochial Bus Sys. v. Board of Educ. of City of NY, 60 N.Y.2d 539, 545–546 [1983]; see also CPLR 5501[a][1] ).
ORDERED that the order dated June 10, 2011 is modified by providing that the branch of plaintiff's motion seeking to open his default in opposing defendant's renewal and reargument motion is denied; as so modified, the order is affirmed, without costs.
On August 10, 2007, a vehicle owned and operated by plaintiff was struck in the rear by another vehicle, which left the scene of the accident. On July 7, 2009, plaintiff commenced this personal injury action against defendant, seeking damages in the sum of $25,000, by filing in the Civil Court a summons and endorsed complaint. Defendant failed to answer or appear, and, after an inquest, a default judgment was entered on August 12, 2010, in the sum of $25,000. Thereafter, by order to show cause dated September 24, 2010, defendant moved to, among other things, vacate the inquest and the default judgment. By order dated October 8, 2010, the Civil Court (Terrence C. O'Connor, J.) denied defendant's motion. On November 16, 2010, defendant moved for leave to renew and reargue his prior motion. Plaintiff did not submit any opposition to this motion. By order dated December 16, 2010, the Civil Court (Terrence C. O'Connor, J.) granted defendant's motion to the extent of setting the matter down for a traverse hearing and for a final disposition of defendant's motion. After the traverse hearing, at which plaintiff's process server and defendant testified, the Civil Court (Anna Culley, J.), by order dated January 20, 2011, found that process had been properly served but stated that “in the interest of justice and the court's strong desire to have matters litigated on their merits,” it was vacating the default judgment and permitting defendant to interpose an answer within 30 days of service of a copy of the order with notice of entry.
Thereafter, plaintiff moved, in effect, to open his default in opposing defendant's renewal and reargument motion, to vacate the December 16, 2010 order and, in effect, the January 20, 2011 order, and, upon vacatur, to deny defendant's motion for leave to renew and reargue his prior motion to vacate the default judgment. Plaintiff's counsel claimed, as an excuse for the default, that she had not opposed defendant's motion because her office had relocated and she had not received the motion papers until after the motion's return date. Plaintiff sought, upon the opening of the default in opposing defendant's motion, to vacate the resultant orders on the ground that, in seeking to vacate the default judgment, defendant had failed to demonstrate an excusable default or a meritorious defense to the action. Defendant opposed the motion, arguing, among other things, that plaintiff had failed to demonstrate a reasonable excuse for the default in opposing the renewal and reargument motion. By order dated June 10, 2011, the Civil Court, upon granting the branch of plaintiff's motion seeking to open his default, denied the remaining branches of plaintiff's motion. Plaintiff appeals from the portions of the June 10, 2011 order that were adverse to him. In opposition, defendant argues, among other things, that, in support of plaintiff's motion to vacate his default in opposing defendant's motion, plaintiff failed to demonstrate a reasonable excuse for his default.
A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion ( see CPLR 5015[a][1]; see also Infante v. Breslin Realty Dev. Corp., 95 AD3d 1075 [2012]; Dokaj v. Ruxton Tower Ltd. Partnership, 91 AD3d 812 [2012] ). Although plaintiff's counsel stated that there was a reasonable excuse for the default because she had relocated her office and had not received defendant's motion papers until after the return date, we find that there is merit to defendant's argument that plaintiff failed to establish an excusable default. Plaintiff's counsel had never advised the court or defense counsel that she had changed her office address. Moreover, while she admitted that she had received defendant's motion papers six days after the return date, she took no action at that time to open her default and, in fact, appeared at, and fully participated in, the traverse hearing.
We note that, contrary to plaintiff's argument on appeal, this court is permitted, upon plaintiff's appeal from the portions of the order that were adverse to him, to review the remaining portion of the order, i.e., the issue raised by defendant of whether plaintiff established a reasonable excuse for the default in opposing defendant's motion ( see Parochial Bus Sys. v. Board of Educ. of City of NY, 60 N.Y.2d 539, 545–546 [1983]; see also CPLR 5501 [a] [1] ).
Accordingly, the order is modified by providing that the branch of plaintiff's motion seeking to open his default in opposing defendant's renewal and reargument motion is denied.