| Smyth v Getty Petroleum Mktg., Inc. |
| 2013 NY Slip Op 01075 [103 AD3d 790] |
| February 20, 2013 |
| Appellate Division, Second Department |
| Robert J. Smyth, Respondent, v Getty PetroleumMarketing, Inc., Defendant, and Star 260 Realty, LLC, et al.,Appellants. |
—[*1] Callahan & Fusco, LLC, New York, N.Y. (Brian R. Masterson and Mark P. Bradleyof counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Star 260 Realty,LLC, and Horizon Star Services, LLC, appeal, as limited by their brief, from so much ofan order of the Supreme Court, Kings County (Bayne, J.), dated June 1, 2012, as grantedthe plaintiff's motion, in effect, to vacate so much of a prior order of the same court datedSeptember 23, 2011, as granted their unopposed motion pursuant to CPLR 3126 todismiss the complaint insofar as asserted against them.
Ordered that the order dated June 1, 2012, is affirmed insofar as appealed from, withcosts.
To warrant vacatur of so much of the order dated September 23, 2011 (hereinafterthe default order), as granted the appellants' motion pursuant to CPLR 3126 to dismissthe complaint insofar as asserted against them upon the plaintiff's failure to oppose thatmotion, the plaintiff was required to demonstrate a reasonable excuse for the default andthe existence of a potentially meritorious opposition to the motion (see CPLR5015 [a] [1]; Infante v BreslinRealty Dev. Corp., 95 AD3d 1075, 1076 [2012]; Dokaj v Ruxton Tower Ltd.Partnership, 91 AD3d 812, 813 [2012]; New Seven Colors Corp. v White Bubble Laundromat, Inc., 89AD3d 701, 702 [2011]). The plaintiff asserted that his failure to oppose theappellants' motion pursuant to CPLR 3126 and to provide outstanding discovery resultedfrom his prior attorney's neglect of the matter and failure to communicate with him (see Deutsche Bank Natl. Trust Co.v Luden, 91 AD3d 701 [2012]; Wagner v 119 Metro, LLC, 59 AD3d 531, 533 [2009]; Hageman v Home Depot U.S.A.,Inc., 25 AD3d 760, 761 [2006]; Gironda v Katzen, 19 AD3d 644, 645 [2005];Halikiopoulos v New York Hosp. Med. Ctr. of Queens, 284 AD2d 373, 374[2001]). When the plaintiff discovered that the default order had been issued against him,he immediately retained new counsel, provided responses to outstanding discoveryrequests, and moved to vacate the default order (see Abel v Estate of Collins, 73 AD3d 1423, 1425 [2010];Steel Krafts Bldg. Materials & Supplies v Komazenski, 252 AD2d 731, 732[1998]; Nan Su Paek v In Chul Song, 158 AD2d 321 [1990]). The plaintiffdemonstrated that his failure to provide the outstanding discovery was not willful andcontumacious (see CPLR 3126; Wagner v 119 Metro, LLC, 59 AD3d at533; Gironda v Katzen, 19 AD3d at 645; Halikiopoulos v New York Hosp.Med. Ctr. of Queens, 284 AD2d at 374). Moreover, in light of the strong publicpolicy in favor of resolving cases on the merits, the potential merit to the action, theplaintiff's lack of intent to abandon the action, and the lack of prejudice to the appellantscaused by the delay, the Supreme Court providently exercised its discretion in grantingthe plaintiff's motion, in effect, to vacate so much of the default order as granted theappellants' motion pursuant to CPLR 3126 to dismiss the complaint insofar as assertedagainst them (see Halikiopoulos v New York Hosp. Med. Ctr. of Queens, 284AD2d at 374; see also Infante v Breslin Realty Dev. Corp., 95 AD3d at 1077; Piszczatowski v Hill, 93 AD3d707, 708 [2012]). Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.