| Infante v Breslin Realty Dev. Corp. |
| 2012 NY Slip Op 03809 [95 AD3d 1075] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Inocencio Infante, Appellant, v Breslin RealtyDevelopment Corp., Defendant/Third-Party Plaintiff-Respondent, et al., Defendant. Toys "R" Us,Doing Business as Babies "R" Us, et al., Third-Party Defendants-Respondents. |
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Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin J. Bryant of counsel), fordefendant/third-party plaintiff-respondent. Chesney & Murphy, LLP, Baldwin, N.Y. (Marie I. Goutzounis of counsel), for third-partydefendant-respondent Toys "R" Us, doing business as Babies "R" Us. Goldberg Segalla, LLP, Garden City, N.Y. (Marianne Arcieri of counsel), for third-partydefendant-respondent Centimark Corporation.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Murphy, J.), entered July 14, 2010, which denied his motionto vacate a prior order of the same court dated August 11, 2008, granting the unopposed motionof the defendant Breslin Realty Development Corporation pursuant to CPLR 3126 to dismiss thecomplaint insofar as asserted against it based upon his failure to comply with, inter alia,court-ordered discovery, and to restore the action to active status. The appeal brings up forreview so much of an order of the same court dated April 29, 2011, as, upon reargument, adheredto the original determination in the order entered July 14, 2010 (see CPLR 5517 [b]).
Ordered that the appeal from the order entered July 14, 2010, is dismissed, as that order wassuperseded by the order dated April 29, 2011, made upon reargument; and it is further,
Ordered that the order dated April 29, 2011, is reversed insofar as reviewed, on the facts andin the exercise of discretion, and, upon reargument, the order entered July 14, 2010, is vacated,and thereupon, the plaintiff's motion to vacate the order dated August 11, 2008, and to restore theaction to active status is granted, the order dated August 11, 2008, is vacated, and the motion ofthe defendant Breslin Realty Development Corporation pursuant to CPLR 3126 to dismiss thecomplaint insofar as asserted against it is denied; and it is further,[*2]
Ordered that one bill of costs is awarded to the plaintiff.
In order for the plaintiff to prevail on his motion to vacate his default in opposing the motionof the defendant Breslin Realty Development Corp. (hereinafter Breslin) to dismiss the complaintinsofar as asserted against it pursuant to CPLR 3126 due to the plaintiff's failure to comply with,inter alia, court-ordered discovery, the plaintiff was required to demonstrate a reasonable excusefor his default (see CPLR 5015 [a] [1]) and the existence of a potentially meritoriousopposition to Breslin's motion (seeDokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 813 [2012]; New Seven Colors Corp. v White BubbleLaundromat, Inc., 89 AD3d 701, 702 [2011]; L&L Auto Distribs. & Suppliers Inc. v Auto Collection, Inc., 85 AD3d734, 735 [2011]; Remote MeterTech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032 [2011]; Bazoyah v Herschitz, 79 AD3d1081 [2010]). The determination of what constitutes a reasonable excuse lies within thecourt's discretion (see Santiago v NewYork City Health & Hosps. Corp., 10 AD3d 393, 394 [2004]; Roussodimou vZafiriadis, 238 AD2d 568, 569 [1997]; Grutman v Southgate At Bar Harbor HomeOwners' Assn., 207 AD2d 526, 527 [1994]). The court has the discretion to accept law officefailure as a reasonable excuse (see CPLR 2005; Henry v Kuveke, 9 AD3d 476, 479 [2004]).
The plaintiff demonstrated a reasonable excuse for his default in opposing Breslin's motionto dismiss the complaint insofar as asserted against it. By notice of motion dated July 23, 2007,Breslin moved to dismiss the complaint. Thereafter, one of the third-party defendants moved todismiss Breslin's third party complaint and the defendant Modell's Sporting Goods, Inc.(hereinafter Modell's), moved to dismiss the complaint insofar as asserted against it. The plaintiffopposed Modell's motion but did not oppose Breslin's motion. In support of the plaintiff'smotion, counsel for the plaintiff contended that he thought that Breslin would be withdrawing itsmotion, since he provided all outstanding discovery to Breslin around the same time that Breslinfiled its motion. Further, before the motions of Breslin and Modell's were decided, the partiesconducted examinations before trial and the plaintiff served a response pursuant to CPLR 3101(d).
The plaintiff's counsel's excuse of law office failure for not opposing Breslin's motion whileopposing Modell's motion was credible and, under the circumstances, should have been deemedadequate to excuse the plaintiff's default (see Remote Meter Tech. of NY, Inc. v Aris RealtyCorp., 83 AD3d at 1032; Simpson vTommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392 [2008]; see also Braswell v Schaffler, 12 AD3d474, 475 [2004]). Moreover, the plaintiff demonstrated the existence of a potentiallymeritorious opposition to Breslin's motion to dismiss the complaint based upon his substantialcompliance with discovery demands (see Newell v Ford Motor Credit Co., 36 AD3d 675, 675-676[2007]). In addition, Breslin did not oppose the plaintiff's motion to vacate his default and torestore the action to active status (seeDorio v County of Suffolk, 58 AD3d 594, 595 [2009]).
Further, that branch of the plaintiff's motion which was to restore the action to active statusshould have been granted, since the record was devoid of evidence of a pattern of persistentneglect by the plaintiff to prosecute or an intent to abandon the action (see Piszczatowski v Hill, 93 AD3d707 [2012]; Dorio v County of Suffolk, 58 AD3d at 595).
Accordingly, the Supreme Court should have granted the plaintiff's motion to vacate hisdefault and to restore the action to active status. Skelos, J.P., Balkin, Leventhal and Austin, JJ.,concur.