| Martins v Yukhayev |
| 2009 NY Slip Op 04394 [63 AD3d 697] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Nelson Martins, Respondent, v Ilmion Yukhayev et al.,Appellants. |
—[*1] Edmond C. Chakmakian, P.C., Hauppauge, N.Y. (Anne Marie Caradonna of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Schack, J.), dated February 22, 2008, which granted theplaintiff's motion for leave to reargue his prior motion to vacate an order dated May 30, 2006,granting the defendants' unopposed motion for summary judgment dismissing the complaint onthe ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), which had been denied in an order of the same court dated July 6, 2007, andupon reargument, in effect, vacated the order dated July 6, 2007, granted the plaintiff's motion tovacate the order dated May 30, 2006, and thereupon denied the defendants' motion for summaryjudgment dismissing the complaint on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d).
Ordered that the order dated February 22, 2008 is modified, on the law, by deleting theprovision thereof which, upon reargument, in effect, vacated the order dated July 6, 2007,granted the plaintiff's motion to vacate the order dated May 30, 2006, and denied the defendant'smotion for summary judgment and substituting therefor a provision, upon reargument, adheringto the determination in the order dated July 6, 2007, denying the plaintiff's motion to vacate theorder dated May 30, 2006; as so modified, the order is affirmed, without costs or disbursements.[*2]
The present action arises from a two-car motor vehicleaccident which occurred in Manhattan on September 17, 2004 in which a motor vehicle operatedby the plaintiff was allegedly struck in the rear by a taxi cab operated by the defendant IlmionYukhayev and owned by the defendant Monica Taxi Corp.
In support of his motion to vacate his default, the plaintiff was required to present areasonable excuse for his default and a meritorious claim. The determination of what constitutesa reasonable excuse for a default lies within the sound discretion of the trial court (seeBardales v Blades, 191 AD2d 667 [1993]), and in exercising that discretion the trial courtmay accept law office failure as an excuse (see CPLR 2005; Parker v City of NewYork, 272 AD2d 310, 311 [2000]; Searing v Anand, 127 AD2d 582 [1987]).
Here, the Supreme Court providently exercised its discretion in accepting the plaintiff'sexplanation of law office failure for his failure to appear in court for argument on the summaryjudgment motion. The motion to vacate was timely made, and there was no pattern of delay,evidence of wilfulness, or prejudice to the defendants demonstrated (see Hageman v Home Depot U.S.A., Inc.,25 AD3d 760 [2006]; Searing v Anand, 127 AD2d 582 [1987]).
However, the plaintiff failed to raise a triable issue of fact in opposition to the defendants'prima facie showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident. Accordingly, the SupremeCourt erred, upon reargument, by, in effect, granting the plaintiff's motion to vacate his default.Spolzino, J.P., Dillon, Florio and Belen, JJ., concur.