Opinion
2017–00020 Index No. 16284/13
03-13-2019
Klara VIZELTER, Appellant, v. Emilia STROGOV, etc., et al., Respondents.
Nora Constance Marino, Great Neck, NY, for appellant. Kaufman Borgeest & Ryan, LLP, Garden City, N.Y. (David Bloom of counsel), for respondent Emilia Strogov. Gerspach Sikoscow, LLP, New York, N.Y. (Thomas J. Gerspach and Kristen J. Halford of counsel), for respondent Jessica B. Gallina.
Nora Constance Marino, Great Neck, NY, for appellant.
Kaufman Borgeest & Ryan, LLP, Garden City, N.Y. (David Bloom of counsel), for respondent Emilia Strogov.
Gerspach Sikoscow, LLP, New York, N.Y. (Thomas J. Gerspach and Kristen J. Halford of counsel), for respondent Jessica B. Gallina.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to recover damages for podiatric malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Marsha L. Steinhardt, J.), dated September 22, 2016. The order denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a) to vacate a prior order of the same court dated July 25, 2014, granting the defendants' separate unopposed motions to dismiss the complaint insofar as asserted against each of them.
ORDERED that the order dated September 22, 2016, is affirmed, with one bill of costs.
The plaintiff commenced this action in August 2013 seeking to recover damages for podiatric malpractice concerning surgical treatment. In October 2013, the defendants submitted demands to the plaintiff's prior attorney, Stephen Krawitz, for a bill of particulars and authorizations permitting the defendants to obtain medical records related to the complaint. After repeated demands to Krawitz, each of the defendants moved to dismiss the complaint based on the plaintiff's failure to respond. By order dated June 27, 2014, the Supreme Court directed the plaintiff to appear on July 18, 2014, or the defendants' motions to dismiss would be granted. By order dated July 25, 2014, the court granted the defendants' motions to dismiss the complaint based on the plaintiff's failure to appear or oppose the defendants' motions. Subsequently, Krawitz was relieved as the plaintiff's attorney and the plaintiff retained a new attorney in March 2016. Thereafter, in June 2016, the plaintiff moved, in effect, pursuant to CPLR 5015(a) to vacate the order dated July 25, 2014, arguing that she never had any intention to abandon the action. She contended that her prior attorney did not inform her about the discovery demands or the court's orders. In the order appealed from, the court denied the plaintiff's motion, in effect, to vacate the order dated July 25, 2014.
A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Ki Tae Kim v. Bishop, 156 A.D.3d 776, 777, 67 N.Y.S.3d 655 ; Brinson v. Pod, 129 A.D.3d 1005, 1008, 12 N.Y.S.3d 201 ; Oller v. Liberty Lines Tr., Inc., 111 A.D.3d 903, 904, 975 N.Y.S.2d 768 ; Schenk v. Staten Is. Univ. Hosp., 108 A.D.3d 661, 662, 969 N.Y.S.2d 519 ; Smyth v. Getty Petroleum Mktg., Inc., 103 A.D.3d 790, 790, 959 N.Y.S.2d 543 ; Infante v. Breslin Realty Dev. Corp., 95 A.D.3d 1075, 1076, 944 N.Y.S.2d 608 ). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, and the court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005 ) where the claim is supported by a detailed and credible explanation of the default at issue (see Scholem v. Acadia Realty Ltd. Partnership, 144 A.D.3d 1012, 1013, 42 N.Y.S.3d 214 ; Bhuiyan v. New York City Health & Hosps. Corp., 120 A.D.3d 1284, 993 N.Y.S.2d 62 ; Sarcona v. J & J Air Container Sta., Inc., 111 A.D.3d 914, 915, 976 N.Y.S.2d 156 ). However, mere neglect is not a reasonable excuse (see OneWest Bank, FSB v. Singer, 153 A.D.3d 714, 716, 59 N.Y.S.3d 480 ).
Here, the plaintiff failed to present a reasonable excuse for her defaults. The plaintiff's affidavit contained conclusory and unsubstantiated allegations that her prior attorney did not inform her about her case. The plaintiff failed to provide a detailed excuse as to why she allowed two years and seven months to pass between the commencement of this action and her inquiry into her prior attorney's failure to appear or oppose the defendants' motions. The plaintiff's failure to apprise herself of any of the defendants' correspondence with her prior attorney, from the initial October 2013, discovery requests until she made inquiry with a new attorney in March 2016 about the status of her case, constitutes a history of repeated neglect by which the default on the part of the plaintiff's prior counsel can be imputed to the plaintiff (see Edwards v. Feliz, 28 A.D.3d 512, 513, 813 N.Y.S.2d 494 ; MRI Enters. v. Amanat, 263 A.D.2d 530, 531, 693 N.Y.S.2d 211 ).
Since the plaintiff failed to demonstrate a reasonable excuse for her default, we need not reach the issue of whether she demonstrated the existence of a potentially meritorious opposition to the motions (see Seidler v. Knopf, 153 A.D.3d 874, 876, 61 N.Y.S.3d 94 ; 92–18 149th St. Realty Corp. v. Stolzberg, 152 A.D.3d 560, 58 N.Y.S.3d 544 ; Jing Shan Chen v. R & K 51 Realty, Inc., 148 A.D.3d 689, 48 N.Y.S.3d 474 ).
Accordingly, we agree with the Supreme Court's denial of the plaintiff's motion, in effect, pursuant to CPLR 5015(a) to vacate the order dated July 25, 2014, granting the defendants' separate unopposed motions to dismiss the complaint insofar as asserted against each of them.
AUSTIN, J.P., ROMAN, MILLER and BRATHWAITE NELSON, JJ., concur.