Opinion
No. 2021-46 K C
08-19-2022
Himalayans Acupuncture, P.C., as Assignee of Sergey Gerasimovich, Artour Martirossian, Pavel Shakhlevich and Vladimir Stilbans, Appellant, v. GEICO Casualty Company, Respondent.
Petre and Associates, P.C. (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Unpublished Opinion
Petre and Associates, P.C. (Damin J. Toell of counsel), for appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), dated November 10, 2020. The order, insofar as appealed from, (1) granted defendant's motion to vacate a prior order of that court (Michael Gerstein, J.) entered May 15, 2019 granting, on default, plaintiff's motion for summary judgment, (2) granted the branches of defendant's "cross motion" seeking summary judgment dismissing so much of the complaint as sought to recover on claims numbered 1, 2, 4, 5, 11, 12 and 13, and (3) upon denying the branches of defendant's "cross motion" seeking summary judgment dismissing so much of the complaint as sought to recover on claims numbered 3, 6, 7, 8, 9 and 10, made CPLR 3212 (g) findings in defendant's favor.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant failed to submit written opposition to the motion and the Civil Court (Michael Gerstein, J.), by order entered May 15, 2019, granted plaintiff's motion on default. By order to show cause dated May 17, 2019, defendant moved to vacate its default and "cross-moved" for summary judgment dismissing the complaint. The Civil Court (Patria Frias-Colón, J.), by order dated November 10, 2020, (1) granted the motion to vacate the May 15, 2019 order, (2) granted the branches of defendant's "cross motion" seeking to dismiss so much of the complaint as sought to recover on claims numbered 1, 2, 4, 5, 11, 12 and 13, finding that defendant had established the timely mailing of the examination under oath (EUO) scheduling letters, plaintiff's failure to appear at the two scheduled EUOs, and the timely mailing of NF-10 denial of claim forms which denied those claims based on plaintiff's failure to appear, and (3) denied the branches of defendant's "cross motion" seeking to dismiss so much of the complaint as sought to recover on claims numbered 3, 6, 7, 8, 9 and 10, finding that defendant had established the timely mailing of its denials of those claims and that the only issue to be determined at trial is the application of the appropriate fee schedule to those claims. On appeal, plaintiff contends that defendant's motion to vacate the May 15, 2019 order should have been denied because defendant failed to establish a reasonable excuse for its default based on law office failure, and that defendant's "cross motion" for summary judgment should have been denied in its entirety as moot.
To vacate an order made upon a defendant's failure to oppose a motion, the defendant is required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Rizzo v GMES, LLC, 190 A.D.3d 995, 996 [2021]; Hogan v Schwartz, 119 A.D.3d 650, 651 [2014]; Herrera v MTA Bus Co., 100 A.D.3d 962, 963 [2012]; Swensen v MV Transp., Inc., 89 A.D.3d 924, 925 [2011]). The determination of what constitutes a reasonable excuse is left to the sound discretion of the court (see Rizzo v GMES, LLC, 190 A.D.3d at 996; Herrera v MTA Bus Co., 100 A.D.3d at 963; Swensen v MV Transp., Inc., 89 A.D.3d at 925), and, in the exercise of its discretion, a court can accept a claim of law office failure as an excuse (see CPLR 2005; Herrera v MTA Bus Co., 100 A.D.3d at 963; Swensen v MV Transp., Inc., 89 A.D.3d at 925) if the claim is "supported by a 'detailed and credible' explanation of the default at issue" (Swensen v MV Transp., Inc., 89 A.D.3d at 925, quoting Henry v Kuveke, 9 A.D.3d 476, 479 [2004]; see also Herrera v MTA Bus Co., 100 A.D.3d at 963). Law office failure does not constitute a reasonable excuse when there is a pattern of willful neglect or where the allegations in support thereof are conclusory and unsubstantiated (see Star Indus., Inc. v Innovative Beverages, Inc., 55 A.D.3d 903, 904 [2008]). Moreover, in making its determination, a court should consider factors such as the extent of the delay, lack of prejudice and the strong public policy in favor of resolving cases on their merit (see Lyubomirsky v Lubov Arulin, PLLC, 125 A.D.3d 614 [2015]).
A review of the record indicates that defendant moved to vacate the default order two days after the order was entered, and the affirmation of defendant's attorney submitted in support of the motion offered a "detailed and credible" explanation of the default which, under the circumstances, was adequate to excuse defendant's default in opposing plaintiff's motion (see CPLR 2005; Lyubomirsky v Lubov Arulin, PLLC, 125 A.D.3d at 614; Swensen v MV Transp., Inc., 89 A.D.3d at 925). Consequently, the Civil Court did not improvidently exercise its discretion in determining that defendant had established a reasonable excuse for its default.
As, on appeal, plaintiff does not argue that defendant had failed to demonstrate a potentially meritorious opposition to plaintiff's motion for summary judgment, we find no basis to disturb so much of the Civil Court's November 10, 2020 order as granted defendant's motion to vacate the May 15, 2019 default order (see CPLR 5015 [a] [1]; Hogan v Schwartz, 119 A.D.3d at 651) and, thus, there is no merit to plaintiff's contention that defendant's "cross motion" for summary judgment should be denied in its entirety as moot.
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.