Jang v All Mobile Video, Inc.

Jang v All Mobile Video, Inc. 2015 NY Slip Op 07582 Decided on October 20, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 20, 2015
Gonzalez, P.J., Mazzarelli, Richter, Manzanet-Daniels, JJ.
15901 116650/09

[*1] Ju Eun Jang, et al., Plaintiffs-Appellants,

v

All Mobile Video, Inc., et al., Defendants-Respondents.

Sim & Park, LLP, New York (Andrew Park of counsel), for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Lindsay J. Kalick of counsel), for respondents.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered April 11, 2014, which denied plaintiffs' motion to vacate a judgment, same court (Silver, J.), entered March 15, 2013, upon default, dismissing the complaint, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, the motion granted, and the complaint reinstated.

We disagree with the motion court as to the reasonableness of plaintiffs' proffered excuse for failing to oppose defendants' motion for summary judgment (see CPLR 5015[a]); Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 833 [1987] [this Court may substitute its own discretion for that of Supreme Court]). Plaintiffs' attorney affirmed that she only received the physician's narrative report, without which she could not prepare opposition papers, until near the return date of the motion and that before that date she suffered a sudden illness and pain for which she had to be heavily sedated, and as a consequence she was unable to communicate with her office about seeking an adjournment (see Santiago v Valentin, 125 AD3d 459 [1st Dept 2015]; Imperato v Mount Sinai Med. Ctr., 82 AD3d 414 [1st Dept 2011], affd on other grounds 18 NY3d 871 [2012]).

Plaintiffs also provided affirmed medical experts' reports demonstrating potentially meritorious claims of serious injury under Insurance Law § 5102(d) (see Laracuente v Batia Realty Corp., 56 AD3d 294 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2015

CLERK