Opinion
2013-02-20
Robert J. SMYTH, respondent, v. GETTY PETROLEUM MARKETING, INC., defendant, Star 260 Realty, LLC, et al., appellants.
Goldberg Segalla LLP, Garden City, N.Y. (Brendan T. Fitzpatrick and Christopher M. Hart of counsel), for appellants. Callahan & Fusco, LLC, New York, N.Y. (Brian R. Masterson and Mark P. Bradley of counsel), for respondent.
Goldberg Segalla LLP, Garden City, N.Y. (Brendan T. Fitzpatrick and Christopher M. Hart of counsel), for appellants. Callahan & Fusco, LLC, New York, N.Y. (Brian R. Masterson and Mark P. Bradley of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants Star 260 Realty, LLC, and Horizon Star Services, LLC, appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated June 1, 2012, as granted the plaintiff's motion, in effect, to vacate so much of a prior order of the same court dated September 23, 2011, as granted their unopposed motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them.
ORDERED that the order dated June 1, 2012, is affirmed insofar as appealed from, with costs.
To warrant vacatur of so much of the order dated September 23, 2011 (hereinafter the default order), as granted the appellants' motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them upon the plaintiff's failure to oppose that motion, the plaintiff was required to demonstrate a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion ( seeCPLR 5015[a][1]; Infante v. Breslin Realty Dev. Corp., 95 A.D.3d 1075, 1076, 944 N.Y.S.2d 608;Dokaj v. Ruxton Tower Ltd. Partnership, 91 A.D.3d 812, 813, 938 N.Y.S.2d 101;New Seven Colors Corp. v. White Bubble Laundromat, Inc., 89 A.D.3d 701, 702, 931 N.Y.S.2d 899). The plaintiff asserted that his failure to oppose the appellants' motion pursuant to CPLR 3126 and to provide outstanding discovery resulted from his prior attorney's neglect of the matter and failure to communicate with him ( see Deutsche Bank Natl. Trust Co. v. Luden, 91 A.D.3d 701, 936 N.Y.S.2d 561;Wagner v. 119 Metro, LLC, 59 A.D.3d 531, 533, 873 N.Y.S.2d 177;Hageman v. Home Depot U.S.A., Inc., 25 A.D.3d 760, 761, 808 N.Y.S.2d 763;Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109;Halikiopoulos v. New York Hosp. Med. Ctr. of Queens, 284 A.D.2d 373, 374, 725 N.Y.S.2d 895). When the plaintiff discovered that the default order had been issued against him, he immediately retained new counsel, provided responses to outstanding discovery requests, and moved to vacate the default order ( see Abel v. Estate of Collins, 73 A.D.3d 1423, 1425, 901 N.Y.S.2d 749;Steel Krafts Bldg. Materials & Supplies v. Komazenski, 252 A.D.2d 731, 732, 675 N.Y.S.2d 393; Nan Su Paek v. In Chul Song, 158 A.D.2d 321, 551 N.Y.S.2d 8). The plaintiff demonstrated that his failure to provide the outstanding discovery was not willful and contumacious ( seeCPLR 3126; Wagner v. 119 Metro, LLC, 59 A.D.3d at 533, 873 N.Y.S.2d 177;Gironda v. Katzen, 19 A.D.3d at 645, 798 N.Y.S.2d 109;Halikiopoulos v. New York Hosp. Med. Ctr. of Queens, 284 A.D.2d at 374, 725 N.Y.S.2d 895). Moreover, in light of the strong public policy in favor of resolving cases on the merits, the potential merit to the action, the plaintiff's lack of intent to abandon the action, and the lack of prejudice to the appellants caused by the delay, the Supreme Court providently exercised its discretion in granting the plaintiff's motion, in effect, to vacate so much of the default order as granted the appellants' motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them ( see Halikiopoulos v. New York Hosp. Med. Ctr. of Queens, 284 A.D.2d at 374, 725 N.Y.S.2d 895;see also Infante v. Breslin Realty Dev. Corp., 95 A.D.3d at 1077, 944 N.Y.S.2d 608;Piszczatowski v. Hill, 93 A.D.3d 707, 708, 940 N.Y.S.2d 283).