| Andelman v Berardi |
| 2010 NY Slip Op 04323 [73 AD3d 956] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Ludmila Andelman, as Administrator of the Estate of PolinaPetlyar, Deceased, Respondent, v James Berardi, Appellant. |
—[*1] Frekhtman & Associates, Brooklyn, N.Y., and Aleksandr Vakerev, Brooklyn, N.Y. (Rosato& Lucciola, P.C. [Joseph S. Rosato and Donald D. Casale], of counsel), for respondent (one brieffiled).
In an action to recover damages for personal injuries and wrongful death, the defendantappeals from an order of the Supreme Court, Kings County (Lewis, J.), dated August 21, 2009,which granted the plaintiff's motion pursuant to CPLR 5015 (a) to vacate an order of the samecourt dated May 1, 2009, granting his motion for summary judgment dismissing the complaintupon the plaintiff's default in opposing the motion and, upon vacatur, denied his motion forsummary judgment dismissing the complaint.
Ordered that the order dated August 21, 2009, is affirmed, with costs.
To vacate the order dated May 1, 2009, entered upon the plaintiff's default in opposing thedefendant's motion for summary judgment dismissing the complaint, the plaintiff was required toshow both a reasonable excuse for the default and the existence of a meritorious cause of action(see CPLR 5015 [a] [1]; Josephv GMAC Leasing Corp., 44 AD3d 905 [2007]; St. Rose v McMorrow, 43 AD3d 1146 [2007]). The SupremeCourt did not improvidently exercise its discretion in determining that the plaintiff's excuse oflaw office failure was reasonable under the circumstances of this case (see CPLR 2005;Simpson v Tommy Hilfiger U.S.A.,Inc., 48 AD3d 389, 392 [2008]; Montefiore Med. Ctr. v Hartford Acc. & Indem. Co., 37 AD3d 673[2007]; Liotti v Peace, 15 AD3d452, 453 [2005]). Furthermore, in submitting the defendant's deposition testimony, theplaintiff demonstrated the existence of a meritorious cause of action. Accordingly, the SupremeCourt properly granted the plaintiff's motion to vacate the order dated May 1, 2009. Moreover,the Supreme Court, upon vacatur, properly denied the defendant's motion for summary judgmentdismissing the complaint. In opposition to the defendant's prima facie showing of entitlement tojudgment as a matter of law, the plaintiff raised a triable issue of fact regarding whether thedefendant failed to use reasonable care to avoid the subject collision (see Tapia v Royal Tours Serv., Inc., 67AD3d 894, 895 [2009]; Sirot vTroiano, 66 AD3d 763, 764 [2009]; Siegel v Sweeney, 266 AD2d 200, 201-202[1999]).
The defendant's remaining contentions are without merit. Dillon, J.P., Balkin, Lott and Sgroi,JJ., concur.