| Yearwood v Post Park, LLC |
| 2012 NY Slip Op 00364 [91 AD3d 766] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Jason Yearwood, Appellant, v Post Park, LLC, et al.,Respondents. |
—[*1] MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (William K. Kerrigan andCatherine H. Friesen of counsel), for respondent Dekalb Development Corp.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Westchester County (Lefkowitz, J.), entered July 9, 2010, which, upon anorder of the same court entered June 17, 2010, conditionally granting those branches of theseparate motions of the defendant Dekalb Development Corp. and the defendants Post Park,LLC, and Corato Contracting Corp. which were, in effect, pursuant to CPLR 3126 to precludehim from presenting certain evidence at trial unless he complied with certain court-ordereddiscovery by a date certain, and upon the plaintiff's default in appearing at a complianceconference scheduled on June 28, 2010, granted the unopposed application of the defendantDekalb Development Corp. to preclude him from presenting certain evidence at trial, and (2) anorder of the same court entered October 20, 2010, which denied his motion to vacate the orderentered July 9, 2010.
Ordered that the appeal from the order entered July 9, 2010, is dismissed, as no appeal liesfrom an order entered upon the default of the appealing party (see CPLR 5511), and, inany event, the appeal from that order has been rendered academic in light of our determination ofthe appeal from the order entered October 20, 2010; and it is further,
Ordered that the order entered October 20, 2010, is reversed, on the law, on the facts, and inthe exercise of discretion, the plaintiff's motion to vacate the order entered July 9, 2010, isgranted, the order entered July 9, 2010, is vacated, and the matter is remitted to the SupremeCourt, Westchester County, for further proceedings, including a new compliance conference; andit is further,
Ordered that one bill of costs is awarded to the plaintiff.
A motion to vacate an order based on excusable default requires the movant to demonstrate areasonable excuse for the default and the existence of a potentially meritorious claim or defense(see Alberton Devs., Inc. v All TradeEnters., Inc., 74 AD3d 1000 [2010]; White v Incorporated [*2]Vil. ofHempstead, 41 AD3d 709, 710 [2007]; Lee v Arellano, 18 AD3d 620 [2005]; Kumar v Yonkers Contr. Co., Inc., 14AD3d 493, 494 [2005]; Reices v Catholic Med. Ctr. of Brooklyn & Queens, 306AD2d 394 [2003]).
Under the circumstances here, the plaintiff offered a reasonable excuse for his default anddemonstrated the existence of a potentially meritorious claim (see White v Incorporated Vil.of Hempstead, 41 AD3d at 710; Reices v Catholic Med. Ctr. of Brooklyn & Queens,306 AD2d 394 [2003]). Accordingly, the Supreme Court should have granted the plaintiff'smotion to vacate the order entered July 9, 2010. Dillon, J.P., Balkin, Leventhal and Belen, JJ.,concur.