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Lee v. Salto

Supreme Court of New York, Second Department

June 26, 2013

Jong Il Lee, respondent,
v.
Devizhnav En Salto, et al., defendants, Lisa A. Coon, et al., appellants. Index No. 9465/09

Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Arthur R. Simuro, Donald S. Neumann, Jr., and Mendolia & Stenz of counsel), for appellants.

Sim & Park, LLP, New York, N.Y. (Andrew Park of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, PLUMMER E. LOTT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Lisa A. Coon and William Coon appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), entered May 21, 2012, as granted the plaintiff's motion to vacate an order of the same court dated May 16, 2011, granting, upon the plaintiff's default, their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and thereupon denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order entered May 21, 2012, is modified, on the law, by deleting the provision thereof, upon the vacatur of the order dated May 16, 2011, denying the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision granting, on the merits, the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them; as so modified, the order entered May 21, 2012, is affirmed insofar as appealed from, with costs to the appellants.

In order to vacate an order entered on default, a plaintiff is required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Needleman v Tornheim, 106 A.D.3d 707; HSBC Bank USA N.A. v Nuteh 72 Realty Corp., 70 A.D.3d 998, 999). "A decision to vacate a prior order or judgment rests in the sound discretion of the court and will be upheld in the absence of an improvident exercise of that discretion" (Epps v LaSalle Bus, 271 A.D.2d 400, 400; see Mita v Bianchi, 286 A.D.2d 376). Here, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to vacate its prior order, which was entered upon the plaintiff's default in opposing the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.

However, the appellants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955, 956-957). The appellants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff's right shoulder and to the cervical and lumbar regions of his spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 A.D.3d 614). Further, the appellants submitted evidence establishing, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Richards v Tyson, 64 A.D.3d 760, 761).

The plaintiff failed to raise a triable issue of fact in opposition. Therefore, upon vacating the earlier order, the Supreme Court should have granted, on the merits, the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.

RIVERA, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur.


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