| Fremming v Niedzialowski |
| 2012 NY Slip Op 02228 [93 AD3d 1336] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| Margaret M. Fremming et al., Appellants, v Paul E. Niedzialowskiet al., Respondents. |
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Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), enteredDecember 13, 2010 in a personal injury action. The order denied the motion of plaintiffs tovacate the order granting the motion of defendants for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this personal injury action arising out of a motor vehicle accident, plaintiffsappeal from an order denying their motion pursuant to CPLR 5015 (a) to vacate a prior ordergranting defendants' motion for summary judgment dismissing the complaint. The prior orderwas entered upon plaintiffs' default, when plaintiffs failed to file papers in opposition to themotion and their attorney at that time failed to appear in court on the return date of the motion.Plaintiffs thereafter retained new counsel, who moved to vacate the order granting defendants'motion (see id.). In support of their motion, plaintiffs submitted an affidavit from theirformer attorney, who stated that he failed to oppose defendants' motion in a timely manner due tomental health issues he was experiencing at the time. Plaintiffs also submitted an affidavit fromtheir former attorney's psychiatrist, who averred that he had been treating counsel for depressionand for attention deficit/hyperactivity disorder (ADHD) for approximately 8½ years.Defendants opposed the motion, contending that plaintiffs' explanations for the default wereunreasonable and amounted to law office failure, and Supreme Court denied the motion withoutexplanation.
We conclude that the court properly refused to vacate the default pursuant to CPLR 5015 (a)."To vacate their default in opposing the defendants' motion for summary judgment, the plaintiffswere required to demonstrate both a reasonable excuse for the default and a potentiallymeritorious opposition to the motion" (Walker v Mohammed, 90 AD3d 1034, 1034 [2011]; see Counsel Fin. Servs., LLC v DavidMcQuade Leibowitz, P.C., 81 AD3d 1421, 1422 [2011]). Here, plaintiffs failed toestablish a reasonable excuse for the default, and we therefore need not determine [*2]whether they had a potentially meritorious opposition to the motion(see Buja v Shepard Niles, Inc., 45AD3d 1391 [2007]).
Although an attorney's illness may under certain circumstances constitute a reasonableexcuse for a default (see Weitzenberg vNassau County Dept. of Recreation & Parks, 29 AD3d 683, 684-685 [2006]), that is notthe case here. The fact that plaintiffs' former attorney suffered from depression and ADHD doesnot constitute a reasonable excuse for failing to submit papers in opposition to defendants'motion and for failing to appear in court on the return date thereof. Plaintiffs' former attorney hadbeen practicing law under a psychiatrist's care for over eight years, and there is no indication inthe record that his mental health issues had previously interfered with his ability to meet hisresponsibilities. Indeed, the claim of plaintiffs' former attorney that his mental health problemscaused the default are belied by the fact that, during the same time frame, he participated invarious other aspects of the litigation without apparent difficulty. Finally, we note that the courtgranted plaintiffs multiple adjournments with respect to the return date of defendants' motion,and made clear on the record that no further adjournments would be granted.Present—Scudder, P.J., Centra, Carni, Lindley and Martoche, JJ.