| Swensen v MV Transp., Inc. |
| 2011 NY Slip Op 08346 [89 AD3d 924] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Charles Swensen, Respondent, v MV Transportation, Inc., etal., Appellants, et al., Defendants. |
—[*1] Laurence Jeffrey Weingrad, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants MV Transportation, Inc., andJeffrey Salley appeal from an order of the Supreme Court, Kings County (Rothenberg, J.), dated June4, 2010, which granted the plaintiff's motion to vacate an order of the same court entered February 25,2009, granting their motion for summary judgment dismissing the complaint and all cross claims insofaras asserted against them on the ground that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d), upon the plaintiff's default in opposing the motion.
Ordered that the order is affirmed, with costs.
To vacate his default in opposing the motion of the defendants MV Transportation, Inc., andJeffrey Salley (hereinafter together the appellants), the plaintiff was required to demonstrate areasonable excuse for the default in opposing the motion and a potentially meritorious opposition to themotion (see CPLR 5015 [a] [1]; Ogunmoyin v 1515 Broadway Fee Owner, LLC, 85 AD3d 991[2011]; Legaretta v Ekhstor, 74 AD3d899 [2010]; Rivera v Komor, 69AD3d 833 [2010]; Nowell v NYUMed. Ctr., 55 AD3d 573 [2008]). The determination of what constitutes a reasonable excuselies within the Supreme Court's discretion (see White v Incorporated Vil. of Hempstead, 41 AD3d 709, 710[2007]), and the Supreme Court has the discretion to accept law office failure as a reasonable excuse(see CPLR 2005) where that claim is supported by a "detailed and credible" explanation of thedefault or defaults at issue (Henry vKuveke, 9 AD3d 476, 479 [2004]).
Here, the plaintiff's counsel provided a detailed and credible explanation for his default in thismatter, which included various acts of misconduct and deception by his former associate attorney whoworked on the plaintiff's matter. The plaintiff also demonstrated a potentially meritorious opposition tothe appellants' motion for summary judgment dismissing the complaint and all cross claims insofar asasserted against them on the ground that the plaintiff did not sustain a serious injury within the meaningof Insurance Law § 5102 (d). In support of his motion to vacate, the plaintiff relied on, inter alia,the affirmed medical report of the appellants' own examining neurologist who, upon examining theplaintiff on October 24, 2007, almost four years post-accident, found significant limitations in the rangeof motion in the cervical region of the plaintiff's spine and [*2]asignificant limitation in the range of motion in the lumbar region of the plaintiff's spine (see Artis v Lucas, 84 AD3d 845[2011]; Ortiz v Orlov, 76 AD3d1000, 1001 [2010]; Cheour v Pete &Sals Harborview Transp., Inc., 76 AD3d 989 [2010]; Smith v Hartman, 73 AD3d 736 [2010]; Leopold v New York City Tr. Auth., 72AD3d 906 [2010]). While this neurologist suggested that the limitations noted were subjective innature, he failed to explain or substantiate the basis for his conclusion that the noted limitations wereself-imposed with any objective medical evidence (see Artis v Lucas, 84 AD3d at 845; Iannello v Vazquez, 78 AD3d 1121[2010]; Granovskiy v Zarbaliyev, 78AD3d 656 [2010]; cf. Perl vMeher, 74 AD3d 930 [2010]; Bengaly v Singh, 68 AD3d 1030, 1031 [2009]; Moriera v Durango, 65 AD3d 1024,1024-1025 [2009]; Torres v Garcia, 59AD3d 705, 706 [2009]; Busljeta vPlandome Leasing, Inc., 57 AD3d 469 [2008]).
Thus, contrary to the appellants' contention, the Supreme Court providently exercised its discretionin granting the plaintiff's motion to vacate his default. Mastro, J.P., Dillon, Sgroi and Miller, JJ., concur.