| Raciti v Sands Point Nursing Home |
| 2008 NY Slip Op 07225 [54 AD3d 1014] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Erna M. Raciti, Appellant, v Sands Point Nursing Home etal., Respondents. |
—[*1] Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (SusanWeihs Darlington and Kenya S. Hargrove of counsel), for respondent Sands Point NursingHome. Law Offices of Charles E. Kutner, LLP, New York, N.Y. (Patrick Mevs of counsel), forrespondent St. Francis Hospital. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola, N.Y. (Kristen Petersen Hoferof counsel), for respondent Woodmere Rehabilitation Nursing Home.
In an action, inter alia, to recover damages for deprivation of rights pursuant to Public HealthLaw § 2801-d, the plaintiff appeals from an order of the Supreme Court, Queens County(Nelson, J.), dated April 24, 2007, which denied her motion, treated by the Supreme Court as onefor leave to reargue but which was, in effect, to vacate a prior order of the same court datedSeptember 11, 2006, granting the defendants' separate motions pursuant to CPLR 3012 (b) todismiss the action for failure to serve timely complaints upon her default in opposing themotions.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, themotion is granted, and the order dated September 11, 2006, is vacated.
In order to vacate the order entered upon her default in opposing the defendants' motions todismiss the action, the plaintiff was required to demonstrate a reasonable excuse for her defaultin [*2]opposing the motions and a meritorious opposition to themotions (see Simpson v TommyHilfiger U.S.A., Inc., 48 AD3d 389 [2008]; Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr.Corp., 45 AD3d 634, 637 [2007]). The plaintiff's failure to oppose the motions todismiss the action was neither "willful nor deliberate" (Franco Belli Plumbing & Heating &Sons, Inc. v Imperial Dev. & Constr. Corp., 45 AD3d at 636; Weekes v Karayianakis,304 AD2d 561, 562 [2003]). Furthermore, the plaintiff established that she had a meritoriousopposition to the motions to dismiss the action. The affirmation and affidavit submitted by theplaintiff were sufficient to establish excusable law office failure. Moreover, the plaintiff actedpromptly to cure her default, and there was no prejudice to the other parties (see Rockland Tr. Mix, Inc. v RocklandEnters., Inc., 28 AD3d 630 [2006]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433[2004]; Eastern Resource Serv. v Mountbatten Sur. Co., 289 AD2d 283 [2001]). Theplaintiff also established a meritorious cause of action (see Zeides v Hebrew Home for Agedat Riverdale, 300 AD2d 178 [2002]). Therefore, her motion, in effect, to vacate the priororder entered upon her default should have been granted. Spolzino, J.P., Ritter, Dillon, Balkinand Leventhal, JJ., concur.