Opinion
12-07-2016
Greg S. POLSKY, appellant, v. Amy SIMON, respondent.
Harfenist Kraut & Perlstein, LLP, Lake Success, NY (Steven J. Harfenist of counsel), for appellant. Phillips Nizer, LLP, Garden City, NY (Jon Schuyler Brooks of counsel), for respondent.
Harfenist Kraut & Perlstein, LLP, Lake Success, NY (Steven J. Harfenist of counsel), for appellant.
Phillips Nizer, LLP, Garden City, NY (Jon Schuyler Brooks of counsel), for respondent.
RANDALL T. ENG, P.J., LEONARD B. AUSTIN, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for abuse of process and prima facie tort, the plaintiff appeals from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered September 23, 2015, which denied his motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated June 11, 2015, striking his complaint upon his failure to appear two times at the call of the trial calendar and directing the defendant to proceed to inquest on her counterclaims.
ORDERED that the order entered September 23, 2015, is reversed, on the facts and in the exercise of discretion, with costs, and the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate the order dated June 11, 2015, is granted.
The plaintiff, who sought to vacate his default in appearing at a call of the trial calendar, was required to demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action and defense to the counterclaims (see CPLR 5015[a][1] ; 22 NYCRR 202.27 [a]; Foley Inc. v. Metropolis Superstructures, Inc., 130 A.D.3d 680, 680, 11 N.Y.S.3d 873 ; Mazzio v. Jennings, 128 A.D.3d 1032, 8 N.Y.S.3d 596 ). "Whether an excuse is reasonable is a determination within the sound discretion of the Supreme Court" (Walker v. Mohammed, 90 A.D.3d 1034, 1034, 934 N.Y.S.2d 854 ; see GMAC Mtg., LLC v. Guccione, 127 A.D.3d 1136, 9 N.Y.S.3d 83 ).
The Supreme Court improvidently exercised its discretion in finding that the plaintiff did not demonstrate a reasonable excuse for missing the calendar calls on June 11, 2015. The plaintiff submitted an affirmation of counsel explaining her lateness in missing the second call of the calendar by minutes, thereby providing a reasonable excuse for failing to timely appear (see Yearwood v. Post Park, LLC, 91 A.D.3d 766, 767, 936 N.Y.S.2d 893 ; Matter of Morales v. Marma, 88 A.D.3d 722, 723, 930 N.Y.S.2d 629 ; Felsen v. Stop & Shop Supermarket Co., LLC, 83 A.D.3d 656, 656–657, 919 N.Y.S.2d 883 ; Orwell Bldg. Corp. v. Bessaha, 5 A.D.3d 573, 773 N.Y.S.2d 126 ; Reices v. Catholic Med. Ctr. of Brooklyn & Queens, 306 A.D.2d 394, 761 N.Y.S.2d 285 ; Louis v. Louis, 231 A.D.2d 612, 613, 647 N.Y.S.2d 819 ). The plaintiff also made a prima facie showing of potentially meritorious causes of action and defenses (see D & W Const. v. Israel, 54 A.D.3d 889, 864 N.Y.S.2d 146 ; Birky v. Katsilogiannis, 37 A.D.3d 631, 830 N.Y.S.2d 753 ; Vollaro v. Bevilacqua, 33 A.D.3d 910, 823 N.Y.S.2d 204 ).
Thus, the Supreme Court should have granted the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate the order dated June 11, 2015.