Drazek v Napoli, Bern, Ripka, LLP

[*1] Drazek v Napoli, Bern, Ripka, LLP 2012 NY Slip Op 50409(U) Decided on March 5, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-664 Q C.

Lesley Drazek, Appellant,

against

Napoli, Bern, Ripka, LLP, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), dated February 1, 2011. The order, insofar as appealed from, denied plaintiff's motion, in effect, to vacate both a judgment of the same court (Rudolph E. Greco, Jr., J.) entered October 12, 2010 dismissing the action and the underlying order of the same court (Rudolph E. Greco, Jr., J.) dated August 17, 2010 granting defendant's motion to strike the complaint pursuant to CPLR 3126 for plaintiff's failure to provide discovery, and, upon such vacatur, to restore the action to the calendar.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiff, a former client of defendant law firm, commenced this action seeking damages as a result of defendant's allegedly inadequate representation of plaintiff in a personal injury case. On a prior appeal, this court reversed so much of an order as granted the branch of defendant's motion seeking summary judgment dismissing the complaint and denied that branch of the motion (Drazek v Napoli, Bern, Ripka, LLP, 23 Misc 3d 11 [2009]). On March 18, 2010, the parties appeared for a conference in the Civil Court, and the matter was adjourned to September 10, 2010. In the interim, on June 7, 2010, defendant served plaintiff with combined discovery demands as well as a notice of deposition requesting that plaintiff appear for a deposition on July [*2]14, 2010. Plaintiff failed to respond to the discovery demands and failed to appear for the deposition. As a result, defendant moved for, among other things, an order precluding plaintiff from offering evidence in support of his claim, based on plaintiff's failure to provide discovery, and granting defendant summary judgment. An affidavit of service indicates that defendant's motion papers were served on plaintiff by first class mail on July 28, 2010. Plaintiff failed to oppose the motion and failed to appear on the August 17, 2010 return date. By order entered August 17, 2010, the Civil Court (Rudolph E. Greco, Jr., J.) granted defendant's motion. The case was marked off the trial calendar on September 10, 2010. A judgment dismissing the action was subsequently entered on October 12, 2010.

Thereafter, plaintiff moved, in effect, to vacate both the judgment and the August 17, 2010 order, claiming that he had not been notified of defendant's motion and that he had furnished all the documents required of him, and, upon such vacatur, to restore the action to the calendar. Defendant opposed the motion and cross-moved for costs and reasonable legal fees. By order dated February 1, 2011, the Civil Court denied the motion and the cross motion. Plaintiff appeals from so much of the order as denied his motion.

In moving to vacate his default in opposing defendant's motion, plaintiff failed to demonstrate both a reasonable excuse for the default (see CPLR 5015 [a]) as well as potentially meritorious opposition to the motion (see New Seven Colors Corp. v White Bubble Laundromat, Inc., 89 AD3d 701 [2011]).

Although plaintiff claims that he was not notified of the August 17, 2010 return date of defendant's motion, his mere denial of receipt of such motion papers, without more, is insufficient to rebut the presumption of proper mailing which attached to the affidavit of service annexed to defendant's motion papers (see Kihl v Pfeffer, 94 NY2d 118 [1999]). Consequently, plaintiff did not demonstrate that he had a reasonable excuse for the default. Moreover, even were we to credit plaintiff's statement, plaintiff failed to demonstrate that he had potentially meritorious opposition to defendant's motion.

We note that a party's status as a self-represented litigant does not entitle the party greater rights than any other litigant (see Roundtree v Singh, 143 AD2d 995 [1988]; see also Walter v Jones, Sledzik, Garneau & Nardone, LLP, 67 AD3d 671 [2009]).

Accordingly, the Civil Court's order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 05, 2012