Park, PC, New York, NY, for appellant.
Hanson & Kaplan, Yonkers, NY (Joan A. Reyes of counsel),
for plaintiff/counterclaim defendant-respondent.
Cheven, Keely & Hatzis, New York, NY (William B. Stock of
counsel), for defendants/counterclaim plaintiffs-respondents.
PRISCILLA HALL, J.P., JEFFREY A. COHEN, BETSY BARROS, LINDA
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff Oak Bong Kim appeals from an order of the Supreme
Court, Queens County (Dufficy, J.), entered February 29,
2016, which denied her motion, in effect, to vacate so much
of a prior order of the same court entered October 14, 2015,
as granted the separate motions of the plaintiff/counterclaim
defendant and the defendants/counterclaim plaintiffs for
summary judgment dismissing the complaint insofar as asserted
by her, upon her failure to oppose the motions, and thereupon
to deny those separate motions.
that the order entered February 29, 2016, is affirmed, with
one bill of costs payable to the respondents appearing
separately and filing separate briefs.
February 11, 2013, the plaintiffs commenced this action to
recover damages for personal injuries allegedly sustained by
them in a car accident. In their answer, the defendants
asserted a counterclaim against the plaintiff Ki Tae Kim, who
was the driver of the plaintiffs' vehicle. By notice of
motion dated March 16, 2015, the plaintiff/counterclaim
defendant, Ki Tae Kim, moved for summary judgment dismissing
the complaint insofar asserted by the plaintiff Oak Bong Kim
(hereinafter the appellant) on the ground that she did not
sustain a serious injury within the meaning of Insurance Law
§ 5102(d) as a result of the subject accident, and
noticed the motion to be heard on April 30, 2015. On April
30, 2015, the Supreme Court granted the appellant's
request to adjourn the return date of the motion to June 25,
2015. By notice of motion dated June 8, 2015, the defendants
separately moved for the same relief. On June 25, 2015, the
return date of both motions was adjourned to August 6, 2015,
at the appellant's request. On August 6, 2015, the court
denied the appellant's third request for an adjournment
of the return date, and the motions were fully submitted
order entered October 14, 2015, the Supreme Court, inter
alia, granted the separate unopposed motions for summary
judgment dismissing the complaint insofar as asserted by the
appellant. By notice of motion dated November 13, 2015, the
appellant moved, in effect, to vacate that portion of the
order entered October 14, 2015, and thereupon to deny the
separate motions. In the order appealed from, entered
February 29, 2016, the court denied the appellant's
seeking to vacate an order entered upon his or her default in
opposing a motion must demonstrate both a reasonable excuse
for the default and a potentially meritorious opposition to
the motion (see CPLR 5015[a]; Paul v
Weatherwax, 146 A.D.3d 792, 793; Credit Bur. of
N.Y., Inc. v Rapid Realty 95, Inc., 137 A.D.3d 841, 841;
J & J Alarcon Realty Corp. v Plantains Rest.,
Inc., 123 A.D.3d 886, 887). The determination of what
constitutes a reasonable excuse lies within the Supreme
Court's discretion, and the court has discretion to
accept law office failure as a reasonable excuse
(see CPLR 2005) where that claim is supported by a
detailed and credible explanation of the default at issue
(see Scholem v Acadia Realty L.P., 144 A.D.3d 1012,
1013; Bhuiyan v New York City Health & Hosps.
Corp., 120 A.D.3d 1284; Sarcona v J & J Air
Container Sta., Inc., 111 A.D.3d 914, 915). However,
"mere neglect is not a reasonable excuse"
(OneWest Bank, FSB v Singer, 153 A.D.3d 714, 716).
the Supreme Court providently exercised its discretion in
determining that the appellant failed to present a reasonable
excuse for her defaults. The appellant's counsel's
affirmation in support of the motion contained conclusory and
unsubstantiated allegations of law office failure after an
attorney left the firm. Counsel's neglect in timely
ascertaining whether opposition had been filed did not
constitute a reasonable excuse (see OneWest Bank, FSB v
Singer, 153 A.D.3d at 716; Aurora Loan Servs., LLC v
Lucero, 131 A.D.3d 496, 497; Neilson v 6D Farm
Corp., 123 A.D.3d 676, 679; Piton v Cribb, 38
A.D.3d 741). Nor did the appellant provide a reasonable
excuse for the three-month delay in moving to vacate her
defaults (see Immigration Servs. for New Ams. v
Monchas, 129 A.D.3d 913, 914; Wells Fargo Bank, N.A.
v Krauss, 128 A.D.3d 813, 815; Betz v Carbone,
126 A.D.3d 743, 744; Neilson v 6D Farm Corp., 123
A.D.3d at 679).
we need not address the issue of whether the appellant
demonstrated a potentially meritorious opposition to the
motions (see Bhuiyan v New York City Health & Hosps.
Corp., 120 A.D.3d at 1285; Garcia v Shaw, 118