Summary
In Rugieri, the Court affirmed the Appellate Division's vacating of a judgment of default and reinstating the complaint where plaintiff "proffered a reasonable excuse for default and facts indicating a meritorious cause of action".
Summary of this case from Merch. Cash & Capital, LLC v. G&E Asian Am. Enter., Inc.Opinion
Decided June 29, 2006.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered October 13, 2005. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, New York County (Richard F. Braun, J.), which had denied plaintiffs' motion for renewal, (2) granted renewal, (3) vacated judgments entered July 11, 2003, (4) reinstated the complaint against Terrance and Marie Bannister, (5) reversed, on the law, an order of that court (Richard F. Braun, J.), which had granted defendant Leann Cheek's motion for summary judgment, (6) reinstated the complaint against Leann Cheek, and (7) dismissed, as academic, an appeal from an order of that court (Richard F. Braun, J.), which had denied plaintiffs' motion to vacate two orders and the judgment entered thereon, dismissing plaintiffs' complaint against Terrance and Marie Bannister. The following question was certified by the Appellate Division: "Was the order of this Court, entered on October 13, 2005, properly made?"
Plaintiff was injured when he fell down cellar stairs in defendant owner's home allegedly after following defendant house guest's directions to the bathroom. The homeowners moved for summary judgment dismissing the claims. Supreme Court granted the motion on default when plaintiffs' counsel failed to appear for oral argument. Supreme Court denied plaintiffs' motion to vacate the default.
The Appellate Division concluded that it was an improvident exercise of the court's discretion to deny reinstatement of the action against the homeowners, as plaintiffs established both a reasonable excuse for their default and the merits of the underlying action, and also concluded that there were factual issues requiring reinstatement of the complaint against the houseguest.
Rugieri v. Bannister, 22 AD3d 299, modified.
Carol R. Finocchio, New York City, for Marie Bannister and another, appellants.
O'Connor, O'Connor, Hintz Deveney, LLP, Melville ( Michael T. Reagan of counsel), for Leann Cheek, appellant.
Seligson, Rothman Rothman, New York City ( Martin S. Rothman of counsel), for respondents.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be modified, with costs to defendant Cheek against the plaintiffs, by granting defendant Cheek's motion for summary judgment dismissing the complaint as against her and, as modified, affirmed, with costs to the plaintiffs against the Bannister defendants. The certified question should be answered in the negative.
Because plaintiffs did not establish a triable issue of fact regarding defendant Leann Cheek's alleged negligence, the Appellate Division erred in reversing Supreme Court's grant of Cheek's motion for summary judgment. The Appellate Division, however, did not abuse its discretion in vacating the judgments and reinstating the complaint as against the Bannister defendants since plaintiffs proffered a reasonable excuse for their default and facts indicating a meritorious cause of action (see CPLR 5015 [a] [1]; Alliance Prop. Mgt. Dev. v. Andrews Ave. Equities, 70 NY2d 831, 832-833; Eugene Di Lorenzo, Inc. v. A.C. Button Lbr. Co., 67 NY2d 138, 141). On remittal to Supreme Court, the parties are left to litigate the motion pending at the time the default judgment was entered.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order modified, etc.