| Walker v Mohammed |
| 2011 NY Slip Op 09632 [90 AD3d 1034] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Ashley Walker et al., Appellants, v Manual KabzarMohammed et al., Respondents. |
—[*1] Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum],of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Vaughan, J.), dated November 3, 2010, which denied theirmotion 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 groundthat the plaintiff Ashley Walker did not sustain a serious injury within the meaning of InsuranceLaw § 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 ofdiscretion, with costs, and the plaintiffs' motion to vacate the order dated June 2, 2010, isgranted.
To vacate their default in opposing the defendants' motion for summary judgment, theplaintiffs were required to demonstrate both a reasonable excuse for the default and a potentiallymeritorious opposition to the motion (see CPLR 5015 [a] [1]; Casali v Cyran, 84 AD3d 711[2011]; Simpson v Tommy HilfigerU.S.A., Inc., 48 AD3d 389, 392 [2008]). Whether an excuse is reasonable is adetermination within the sound discretion of the Supreme Court (see SS Constantine & Helen's RomanianOrthodox Church of Am. v Z. Zindel, Inc., 44 AD3d 744, 745 [2007]).
Here, the Supreme Court improvidently exercised its discretion in concluding that theplaintiffs' 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 theexistence of a potentially meritorious opposition to the motion. Under these circumstances, andcognizant that public policy favors the resolution of cases on the merits, the Supreme Courtshould have granted the plaintiffs' motion pursuant to CPLR 5015 to vacate the order dated June2, 2010. Dillon, J.P., Dickerson, Leventhal, Austin and Miller, JJ., concur.