WILLIAM MATTAR, P.C., WILLIAMSVILLE (MATTHEW J. KAISER OF
COUNSEL), FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA, LLP, SYRACUSE (HEATHER K. ZIMMERMAN OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND
from an order of the Supreme Court, Onondaga County (Walter
W. Hafner, Jr., A.J.), entered January 8, 2016. The order
denied the motion of plaintiff to vacate the order dismissing
hereby ORDERED that the order so appealed from is unanimously
reversed on the law without costs, plaintiff's motion is
granted, the order entered September 22, 2015 is vacated, and
the complaints against defendants-respondents are reinstated.
Plaintiff commenced this consolidated personal injury action
in May 2013 seeking damages for injuries that she sustained
in a motor vehicle accident, while she was a passenger in a
rental vehicle operated by defendant Keith N. Byrd and leased
by defendant Alphonso Bradshaw. Supreme Court granted
defendants' unopposed motion to dismiss the complaints on
the ground that plaintiff failed to comply with an order
directing her to submit to a medical examination conducted by
defendants' expert, and plaintiff appeals from an order
denying her motion to vacate the order of dismissal.
was deposed in March 2014, and, upon her failure to appear
for an independent medical examination (IME) in July 2014,
defendants moved to compel her to submit to an IME. In
December 2014, the parties tentatively agreed to settle the
action, which would render an IME unnecessary, and defendants
withdrew their motion. Thereafter, plaintiff's counsel
attempted to obtain consent from plaintiff's supplemental
uninsured motorist (SUM) carrier to resolve the claim. The
SUM carrier, however, mistakenly asserted that its consent
was not required because plaintiff was not entitled to seek
SUM coverage for the accident inasmuch as the full amounts of
the underlying policies had not been tendered. As a result,
progress toward a settlement was temporarily halted.
14, 2015, defendants brought another motion seeking to compel
plaintiff to submit to an IME. In response, plaintiff's
counsel sought an adjournment so that the SUM coverage
dispute could be resolved and the case could be settled. In
June 2015, the parties met with Supreme Court to discuss the
SUM coverage issue, and once again the parties tentatively
agreed to settle the case.
thereafter, at defendants' request, the court placed the
motion to compel plaintiff to submit to an IME back on its
calendar for July 16, 2015. By letter, the court advised the
parties that, "[i]f no appearance is made, the Court
will order the IME for August 10, 2015, " and
that "[n]o requests for adjournments will be
considered." On July 16, 2015, the court granted
defendants' motion without opposition from plaintiff, and
the IME was ordered to take place at 12:30 p.m. on August 10,
2015. Although plaintiff appeared on that date for her IME,
she was 15 minutes late and was turned away by the IME
August 19, 2015, defendants moved to dismiss the complaints
on the ground that plaintiff failed to comply with the order
directing plaintiff to appear for the IME. Later that same
afternoon, plaintiff's counsel contacted defendants'
counsel and left a voicemail message requesting that the IME
be rescheduled and the motion withdrawn, but that phone call
went unreturned. After he called defendants' counsel,
plaintiff's counsel mistakenly believed that
defendants' motion would be withdrawn or adjourned, and
so plaintiff's counsel failed to enter defendants'
motion into his calendar, did not submit any responding
papers, and did not appear for argument on the motion. The
court granted defendants' unopposed motion and, on
September 22, 2015, the court entered an order dismissing the
subsequently filed the present motion seeking, inter alia, to
vacate the September 22, 2015 order pursuant to CPLR 5015 (a)
(1). The court denied the motion, stating that plaintiff
failed to "establish her default was excusable, "
and that defendants "established [plaintiff's]
persistent neglect in the prosecution of this matter."
The court further found that plaintiff "misrepresented
the status of the SUM issue, causing further delays, "
and that plaintiff's "repeated failures to appear
for an IME and the misrepresentations regarding the SUM issue
constitute a pattern of willful default or neglect that
should not be excused by the court."
agree with plaintiff that the court erred in denying her
motion to vacate the order of dismissal. "In determining
whether to vacate an order entered on default, the court
should consider relevant factors, such as the extent of the
delay, prejudice or lack of prejudice to the opposing party,
whether there has been willfulness, and the strong public
policy in favor of resolving cases on the merits' "
(Calaci v Allied Interstate, Inc., 108 A.D.3d 1127,
1128). "It is well established that law office failure
may be excused, in the court's discretion, when deciding
a motion to vacate a default order" (id.).
plaintiff's default in responding to the motion to
dismiss was due to law office failure. Upon learning of the
default, plaintiff immediately sought to vacate the order,
thereby establishing both a minimal delay and her continued
intent to pursue the action. Further, the record establishes
that plaintiff did in fact appear for an IME pursuant to the
July 16, 2015 order, albeit late, thereby undermining any
claim that plaintiff's conduct could be construed as
"repeated failures to appear for an IME." Likewise,
in light of the SUM carrier's ultimate concession that
its assessment of the law was incorrect and that plaintiff
was entitled to seek SUM coverage, plaintiff made no
misrepresentations regarding the issues related to SUM
coverage that could constitute a pattern of willful default
or neglect. Moreover, on this record, we can discern no
prejudice to defendants from plaintiff's failure to
appear for the scheduled IME, inasmuch as the IME likely was
unnecessary because of the pending settlement. Thus, in light
of the " strong public policy in favor of resolving
cases on the merits' " (Lauer v City of