| Gross v Johnson |
| 2013 NY Slip Op 00456 [102 AD3d 921] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Jeffrey Gross, Respondent, v Rebekah Johnson,Appellant. |
—[*1] Howard M. File, Esq., P.C., Staten Island, N.Y., for respondent.
In an action to recover damages for battery and intentional infliction of emotionaldistress, the defendant appeals (1) from an order of the Supreme Court, RichmondCounty (Fusco, J.), dated September 3, 2010, which, inter alia, conditionally granted thatbranch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answerunless she appeared for a deposition by a date certain, (2) from an order of the same courtdated January 7, 2011, which granted the plaintiff's unopposed application to strike theanswer for failure to comply with the order dated September 3, 2010, (3) from ajudgment of the same court entered November 15, 2011, which, upon the orders, andafter an inquest on the issue of damages, is in favor of the plaintiff and against her in theprincipal sum of $907,849.71, and (4), as limited by her brief, from so much of an orderof the same court dated January 24, 2012, as denied her motion to vacate the order datedJanuary 7, 2011, and the judgment.
Ordered that the appeals from the orders dated September 3, 2010, and January 7,2011, are dismissed; and it is further,
Ordered that the order dated January 24, 2012, is reversed insofar as appealed from,on the facts and in the exercise of discretion, the defendant's motion to vacate the orderdated January 7, 2011, and the judgment is granted, and the order dated January 7, 2011,and the judgment are vacated; and it is further,
Ordered that the appeal from the judgment is dismissed as academic in light of ourdetermination of the appeal from the order dated January 24, 2012; and it is further,
Ordered that one bill of costs is awarded to the defendant.[*2]
The appeals from the orders dated September 3,2010, and January 7, 2011, must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho,39 NY2d 241, 248 [1976]). Moreover, we do not review the order dated September 3,2010, on the appeal from the judgment, since the defendant advances no argument in herbrief regarding that order (seeL.D. Wenger Constr. Co., Inc. v UnBuildIt, Inc., 73 AD3d 864, 865 [2010]; Cambry v Lincoln Gardens, 50AD3d 1081, 1084 [2008]; Ellner v Schwed, 48 AD3d 739, 740 [2008]), and we donot review the order dated January 7, 2011, since it was made upon the default of theaggrieved party (see CPLR 5511).
The defendant moved, inter alia, pursuant to CPLR 3126 to strike the defendant'sanswer based on her failure to appear for a deposition. In an order dated September 3,2010, the Supreme Court conditionally granted that branch of the motion which was tostrike the answer unless the defendant appeared for a deposition by a specified date.When the defendant failed to appear for a deposition by the date specified in the orderdated September 3, 2010, the plaintiff sought to strike the answer. The defendant failedto oppose the plaintiff's application to strike the answer, and the application was grantedby order dated January 7, 2011. In order to vacate the order dated January 7, 2011,entered upon her default in opposing the plaintiff's application, and the resultingjudgment, the defendant was required to demonstrate a reasonable excuse for her defaultand the existence of a potentially meritorious opposition to the plaintiff's application(see CPLR 5015 [a] [1]; Infante v Breslin Realty Dev. Corp., 95 AD3d 1075, 1076[2012]; Dokaj v Ruxton TowerLtd. Partnership, 91 AD3d 812, 813 [2012]; New Seven Colors Corp. v White Bubble Laundromat, Inc., 89AD3d 701, 702 [2011]). The record reveals that the default in opposing theapplication was due, inter alia, to the defendant's prior attorney's neglect of the matter,and that when the defendant discovered that a default order had been entered against her,she immediately retained new counsel and made motions to vacate the default order andthe resulting judgment. The defendant demonstrated a reasonable excuse for her defaultin opposing the plaintiff's application (see Abel v Estate of Collins, 73 AD3d 1423, 1425 [2010];Gironda v Katzen, 19AD3d 644, 645 [2005]; Navarro v A. Trenkman Estate, Inc., 279 AD2d 257,258 [2001]; Steel Krafts Bldg. Materials & Supplies v Komazenski, 252 AD2d731, 732 [1998]; Nan Su Paek v In Chul Song, 158 AD2d 321 [1990]; Cartev Segall, 134 AD2d 397, 398 [1987]).
The defendant also demonstrated a reasonable excuse for her failure to appear at herdeposition by the date set forth in the order dated September 3, 2010, conditionallystriking the answer, and the existence of a potentially meritorious defense to the action(see Gibbs v St. BarnabasHosp., 16 NY3d 74, 80 [2010]; Kirkland v Fayne, 78 AD3d 660, 661 [2010]; Lerner v Ayervais, 16 AD3d382 [2005]). The affidavit of the defendant's psychiatrist, which stated that thedefendant was unable to attend her deposition due to her emotional condition,demonstrated a reasonable excuse for the defendant's failure to comply with theconditional order (see LowSurgical & Med. Supply, Inc. v McAfee, 15 AD3d 547, 548 [2005]; State ofNew York v Kama, 267 AD2d 224 [1999]; Du Jour v DeJean, 247 AD2d370, 371 [1998]). Furthermore, the defendant's affidavit was sufficient to demonstrate apotentially meritorious defense to the action. Accordingly, the defendant's motion tovacate the order dated January 7, 2011, and the judgment entered upon that order, shouldhave been granted. Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.