Hannon v Allen

[*1] Hannon v Allen 2014 NY Slip Op 50478(U) Decided on March 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Tjuana Hannon, MARCUS HANNON, by His Father and Natural Guardian WILLIAM HANNON and WILLIAM HANNON, Individually, Appellants,

against

Peter Allen and DEBORAH HANNON, Respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 20, 2011. The order denied plaintiffs' motion to vacate an order of the same court dated August 6, 2009, which had granted, on default, a motion by defendant Deborah Hannon and a "cross motion" by defendant Peter Allen to dismiss the complaint pursuant to CPLR 3126.

ORDERED that the order is reversed, without costs, plaintiffs' motion to vacate the order entered August 6, 2009 is granted, and, upon vacatur, the motion by defendant Deborah Hannon and the "cross motion" by defendant Peter Allen to dismiss the complaint pursuant to CPLR 3126 are denied on condition that, within 45 days of the date of the decision entered hereon, plaintiffs comply with defendants' discovery demands by providing medical authorizations that are HIPAA-compliant; otherwise, the motion by defendant Deborah Hannon and the "cross motion" by defendant Peter Allen are granted.

Plaintiffs commenced this action in July 2000 in Supreme Court, Kings County, to recover damages for personal injuries. The case was transferred to the Civil Court in 2004 pursuant to CPLR 325 (d). In 2005, plaintiffs were ordered to provide HIPAA-compliant authorizations for their medical records. Although some medical authorizations were provided, plaintiffs did not provide authorizations that were HIPAA-compliant, and the case was marked off the Civil Court's trial calendar in 2006. Plaintiffs filed a notice of trial and certificate of readiness in March of 2008. Defendant Deborah Hannon moved for an order vacating the notice of trial and compelling discovery, and defendant Peter Allen "cross"-moved for the same relief. By order entered June 25, 2008, the Civil Court declined to vacate the notice of trial, but ordered plaintiffs to provide "fresh" medical authorizations or the case would be stricken from the trial calendar.

Arguing that plaintiffs had failed to comply with the June 25, 2008 order, defendant Hannon thereafter moved to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, for an order precluding plaintiffs from giving evidence and, upon such preclusion, dismissing the complaint pursuant to CPLR 3212. Defendant Allen "cross"-moved for the same relief. Plaintiffs failed to oppose the motion and "cross motion." By order entered August 6, 2009, the Civil Court granted the motion and "cross motion" upon plaintiffs' default and dismissed the complaint on the grounds that plaintiffs had failed to provide discovery pursuant to the June 25, 2008 order and had failed to prosecute the matter.

In April 2011 plaintiffs moved to vacate the August 6, 2009 order, and, upon vacatur, to deny defendants' respective motion and "cross motion" to dismiss the complaint. Plaintiffs appeal from an order of the Civil Court entered May 20, 2011 which denied their motion.

To warrant vacatur of the order entered August 6, 2009 upon plaintiffs' default in [*2]opposing the motion and "cross motion" to dismiss the complaint, plaintiffs were required to demonstrate a reasonable excuse for their default and the existence of a potentially meritorious opposition to the motions (see CPLR 5015 [a] [1]; Infante v Breslin Realty Dev. Corp., 95 AD3d 1075, 1076 [2012]; Dokaj v Ruxton Tower Ltd. Partnernership, 91 AD3d 812, 813 [2012]; New Seven Colors Corp. v White Bubble Laundromat, Inc., 89 AD3d 701, 702 [2012]). Plaintiffs asserted that their failure to oppose the motion and "cross motion" resulted from law office failure by their former attorney, who had been suspended from the practice of law and subsequently disbarred. Plaintiffs retained new counsel, moved to vacate the default order (see Abel v Estate of Collins, 73 AD3d 1423, 1425 [2010]) and argued that defendants had been provided with medical records authorizations over the course of years and had had a full and fair opportunity to obtain relevant records. Plaintiffs' excuse of law office failure for not opposing the motion and cross motion should have been deemed adequate to excuse plaintiffs' default. Moreover, plaintiffs demonstrated that their failure to provide medical authorizations that were HIPAA-compliant was not willful and contumacious (see CPLR 3126; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798 [2010]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]). In light of the strong public policy in favor of resolving cases on the merits, the potential merit to the action, plaintiffs' lack of intent to abandon the action and the lack of prejudice to defendants caused by the delay (see Oller v Liberty Lines Transit, Inc., 111 AD3d 903 [2013]; Lawrence v Palmer, 59 AD3d 394 [2009]), the Civil Court should have granted plaintiffs' motion to vacate the order dated August 6, 2009.

Accordingly, the order is reversed, plaintiffs' motion to vacate the order entered August 6, 2009 is granted, and, upon vacatur, the motion by defendant Hannon and the "cross motion" by defendant Allen to dismiss the complaint pursuant to CPLR 3126 are denied on condition that, within 45 days of the date of the decision entered hereon, plaintiffs comply with defendants' discovery demands by providing medical authorizations that are HIPAA-compliant; otherwise, the motion by defendant Hannon and the "cross motion" by defendant Allen are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014