Opinion
Nos. 17452 17453 Index No. 153027/17 Case No. 2022-02271 2022-02974
03-07-2023
Rosa Blanco, Plaintiff-Respondent, v. Quality Gas Corp., Defendant, Cumberland Farms, Inc., Defendant-Appellant.
Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Bridget M. Schultz of counsel), for appellant. Sacco & Fillas, LLP, Astoria (David A. Craven of counsel), for respondent.
Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Bridget M. Schultz of counsel), for appellant.
Sacco & Fillas, LLP, Astoria (David A. Craven of counsel), for respondent.
Before: Renwick, J.P., Singh, Kennedy, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about April 26, 2022, which granted plaintiff's motion to vacate an order granting, upon plaintiff's default, defendant's motion for summary judgment dismissing the complaint, and order, same court and Justice, entered on or about June 28, 2022, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The court providently exercised its discretion in granting plaintiff's motion to vacate the default order (see CPLR 5015[a][1]). The failure of plaintiff's counsel to appear for the scheduled oral argument of defendant's summary judgment motion, due to an inadvertent calendar error by counsel's firm, amounted to excusable law office failure (see Perez v New York City Hous. Auth., 290 A.D.2d 265, 265 [1st Dept 2002]; American Intl. Ins. Co. v MJM Quality Constr., Inc., 69 A.D.3d 520 [1st Dept 2010]; see also CPLR 2005). There is no support in the record for defendant's contention that the default was part of a pattern of dilatory conduct (see Chelli v Kelly Group, P.C., 63 A.D.3d 632, 633 [1st Dept 2009]). Furthermore, there was no prejudice to defendant, since plaintiff made the motion to vacate shortly after the default (see Mejia v Ramos, 113 A.D.3d 429, 430 [1st Dept 2014]), and had filed her opposition to defendant's summary judgment motion well before oral argument was scheduled (see Deshler v East W. Renovators, 259 A.D.2d 351, 352 [1st Dept 1999]).
Additionally, the parties' submissions on defendant's summary judgment motion bore out a successful defense to the motion and a meritorious cause of action (see Perez, 290 A.D.2d at 265). Contrary to defendant's contention, plaintiff had consistently identified the location of the sidewalk condition that caused her to trip and fall, and defendant's own submissions, including photographs of the sidewalk defect, raised questions of fact as to whether the defect was trivial and whether defendant had constructive notice of it (see Powell v BLDG 874 Flatbush LLC, 201 A.D.3d 534, 534-535 [1st Dept 2022]; Flanders v Sedgwick Ave. Assoc., LLC, 156 A.D.3d 504 [1st Dept 2017]). In light of this, the denial of defendant's motion for summary judgment dismissing the complaint was also proper.