Opinion
2021–07634 Index No. 712376/20
08-30-2023
Byung Ha LEE, appellant, v. Teresa M. MASCARENAS, et al., respondents.
Sacco & Fillas, LLP, Bayside, NY (James Kim of counsel), for appellant.
Sacco & Fillas, LLP, Bayside, NY (James Kim of counsel), for appellant.
BETSY BARROS, J.P., JOSEPH J. MALTESE, BARRY E. WARHIT, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), dated September 10, 2021. The order denied the plaintiff's motion pursuant to CPLR 5015(a) to vacate an order of the same court dated May 20, 2019, granting the defendants’ unopposed motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is affirmed, without costs or disbursements.
The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident. The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The plaintiff failed to oppose the motion. In an order dated May 20, 2019, the Supreme Court granted the defendants’ unopposed motion. The plaintiff thereafter moved pursuant to CPLR 5015(a) to vacate the order dated May 20, 2019. In an order dated September 10, 2021, the court denied the plaintiff's motion. The plaintiff appeals.
"A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion" ( Logan v. 250 Pac., LLC, 210 A.D.3d 1064, 1066, 180 N.Y.S.3d 184, citing CPLR 5015[a][1] ). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court" ( Logan v. 250 Pac., LLC, 210 A.D.3d at 1066, 180 N.Y.S.3d 184 ). "In making such a determination, the court may excuse delay or default resulting from law office failure" ( id. ). However, "[m]ere neglect is not a reasonable excuse" ( Melamed v. Adams & Co. Real Estate, LLC, 208 A.D.3d 867, 869, 174 N.Y.S.3d 713 [internal quotation marks omitted]).
Here, the Supreme Court providently exercised its discretion in determining that the plaintiff failed to demonstrate a reasonable excuse for his default in opposing the defendants’ motion for summary judgment (see Matter of Maya Assur. Co. v. Long Sheng Zheng, 207 A.D.3d 632, 633, 170 N.Y.S.3d 480 ; Bank of Am., N.A. v. Murjani, 199 A.D.3d 630, 631, 153 N.Y.S.3d 887 ; Matthews v. Vivero, 189 A.D.3d 1389, 134 N.Y.S.3d 780 ; Pawoor Kim v. Xin Chen, 189 A.D.3d 1061, 1062, 133 N.Y.S.3d 853 ). The plaintiff's counsel's affirmation in support of the motion to vacate the default contained conclusory allegations of law office failure (see Matter of Maya Assur. Co. v. Long Sheng Zheng, 207 A.D.3d at 633, 170 N.Y.S.3d 480 ; Ki Tae Kim v. Bishop, 156 A.D.3d 776, 67 N.Y.S.3d 655 ). Further, the plaintiff failed to provide a reasonable excuse for his delay of more than one year in moving to vacate the order (see 251 Gotham, LLC v. Bank of N.Y. Mellon, 208 A.D.3d 540, 541, 173 N.Y.S.3d 566 ; Nanas v. Govas, 176 A.D.3d 956, 957, 108 N.Y.S.3d 353 ; Ki Tae Kim v. Bishop, 156 A.D.3d 776, 67 N.Y.S.3d 655 ). Since the plaintiff failed to demonstrate a reasonable excuse for his default, it is unnecessary to determine whether he demonstrated a potentially meritorious opposition to the defendants’ motion for summary judgment (see Delucia v. Mar Lbr. Co., Inc., 210 A.D.3d 636, 638, 177 N.Y.S.3d 669 ). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 5015(a) to vacate the order dated May 20, 2019.
BARROS, J.P., MALTESE, WARHIT and TAYLOR, JJ., concur.