Walker v Mohammed

Walker v Mohammed 2011 NY Slip Op 09632 Decided on December 27, 2011 Appellate Division, Second 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 December 27, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2011-00709
(Index No. 2437/08)

[*1]Ashley Walker, etc., et al., appellants,

v

Manual Kabzar Mohammed, et al., respondents.




Kaplan & Kaplan, Brooklyn, N.Y. (Cary H. Kaplan of counsel),
for appellants.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success,
N.Y. [Marshall D. Sweetbaum], of
counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated November 3, 2010, which denied their motion pursuant to CPLR 5015 to vacate a prior order of the same court dated June 2, 2010, granting the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Ashley Walker did not sustain a serious injury within the meaning of Insurance Law § 5102(d), upon their failure to oppose the defendants' motion.

ORDERED that the order dated November 3, 2010, is reversed, on the law and in the exercise of discretion, with costs, and the plaintiffs' motion to vacate the order dated June 2, 2010, is granted.

To vacate their default in opposing the defendants' motion for summary judgment, the plaintiffs were required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Casali v Cyran, 84 AD3d 711; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392). Whether an excuse is reasonable is a determination within the sound discretion of the Supreme Court (see SS Constantine & Helen's Romanian Orthodox Church of Am. v Z. Zindel, Inc., 44 AD3d 744, 745).

Here, the Supreme Court improvidently exercised its discretion in concluding that the plaintiffs' excuse for their default, which was based on law office failure, was not reasonable (see CPLR 2005). Moreover, the plaintiffs's submissions were sufficient to establish the existence of a potentially meritorious opposition to the motion. Under these circumstances, and cognizant that public policy favors the resolution of cases on the merits, the Supreme Court should have granted the plaintiffs' motion pursuant to CPLR 5015 to vacate the order dated June 2, 2010.
DILLON, J.P., DICKERSON, LEVENTHAL, AUSTIN and MILLER, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court