January 9, 2014
Anthony Mejia, Plaintiff-Appellant,
Rafael Ramos, et al., Defendants-Respondents, Karen Santos, Plaintiff, Phyllis G. Taylor, Defendant.
Wingate, Russotti & Shapiro, LLP, New York (Joseph P. Stoduto of counsel), for appellant.
O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, LLP, White Plains (Montgomery L. Effinger of counsel), for Rafael Ramos, respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Marjorie E. Bornes of counsel), for Maddy Mbaye and O.C. Service, respondents.
Acosta, J.P., Andrias, Moskowitz, Richter, JJ.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered March 25, 2013, to the extent it denied plaintiff Mejia's motion to vacate an order, same court and Justice, entered June 22, 2012, granting, upon his default, defendants' motions for summary judgment dismissing his claims, unanimously reversed, on the law, without costs, the motion to vacate granted, and the matter remanded for further proceedings consistent with this order. Appeal from so much of the March 25, 2013 order as denied the motion to renew and/or to reargue, unanimously dismissed, without costs, as academic and as taken from a nonappealable disposition, respectively. Appeal from order, same court and Justice, entered June 22, 2012, which granted, on default, defendants' motions for summary judgment, unanimously dismissed, without costs, as taken from a nonappealable order. Order, same court and Justice, entered June 22, 2012, which denied plaintiffs' motion for summary judgment as untimely, unanimously affirmed, without costs.
To successfully vacate a default, a party must demonstrate a justifiable excuse for his default and a meritorious claim (Northern Source, LLC v Kousouros, 106 A.D.3d 571 [1st Dept 2013]). In determining if there is a reasonable excuse for a party's default, several relevant factors should be taken into consideration, including the length of the delay, prejudice to the opposing party and the strong public policy in this State favoring the resolution of matters on the merits (Chevalier v 368 E. 148th St. Assoc., LLC, 80 A.D.3d 411, 413-414 [1st Dept 2011]; see also New Media Holding Co., 97 A.D.3d at 465; Dokmecian v ABN AMRO N. Am., 304 A.D.2d 445 [1st Dept 2003]). Here, plaintiffs' counsel claims that the delay in acquiring medical reports necessary to oppose defendants' motions was the reason for the default. Further, the belief of plaintiffs' counsel that he thought an adjournment had been granted, although not the strongest argument, amounts to a law office failure, "which is a recognized excuse for vacatur of a default" (Matter of Lancer Ins. Co. v Rovira, 45 A.D.3d 417, 418 [1st Dept 2007]; see Theatre Row Phase II Assoc. v H & I, Inc., 27 A.D.3d 216, 217 [1st Dept 2006] [incorrect assumption that a requested adjournment had been granted was "inadvertent and excusable"]).
In addition, plaintiff moved to vacate shortly after he defaulted and this delay did not cause defendants to suffer undue prejudice (see American Intl. Ins. Co. v MJM Quality Constr., Inc., 69 A.D.3d 520 [1st Dept 2010]). On remand, defendants will have ample opportunity to argue their motion on the merits. As to the merits of the case, plaintiff presented a meritorious claim by submitting medical reports indicating that plaintiff underwent numerous treatments following the accident. Taken together, these factors warrant giving plaintiff the opportunity to respond to defendants' motions for summary judgment to dismiss the complaint.
The motion court properly denied plaintiffs' motion for partial summary judgment as untimely (CPLR 3212[a]; see Brill v City of New York, 2 N.Y.3d 648, 652 ). Plaintiffs failed to offer a reasonable explanation to the motion court as to why the motion was filed 181 days after the filing of the note of issue.
Because we are granting plaintiff's motion to vacate his default, plaintiff's appeal from the denial of the motion to renew is moot (see Matter of Castell v City of Saratoga Springs, 3 A.D.3d 774, 776 [3rd Dept 2004]).
Finally, no appeal lies from the denial of a motion for reargument (see Belok v New York City Dept. of Hous. Preserv. & Dev., 89 A.D.3d 579 [1st Dept 2011]) or from the order of default itself (CPLR 5511; see Armin A. Meizlik Co. Inc. v L & K Jewelry Inc., 68 A.D.3d 530, 531 [1st Dept 2009]).
We have considered the parties' remaining arguments and find them unavailing.