| Santos v Penske Truck Leasing Co. |
| 2013 NY Slip Op 02734 [105 AD3d 1029] |
| April 24, 2013 |
| Appellate Division, Second Department |
| Alfredo Santos, Appellant, v Penske TruckLeasing Co. et al., Respondents. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (MarciaK. Raicus of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Hart, J.), dated January 17, 2012, whichdenied the plaintiff's motion, denominated, inter alia, as one for leave to reargue orrenew, but which was, in actuality, to vacate a prior order of the same court dated August19, 2011, granting the defendants' motion for summary judgment dismissing thecomplaint upon his default in opposing that motion, and thereupon, to deny thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order dated January 17, 2012, is reversed, on the law and in theexercise of discretion, with costs, the plaintiff's motion, denominated, inter alia, as onefor leave to reargue or renew, but which was, in actuality, to vacate the order datedAugust 19, 2011, and thereupon, to deny the defendants' motion for summary judgmentdismissing the complaint is granted, the order dated August 19, 2011, is vacated, and thedefendants' motion for summary judgment dismissing the complaint is denied.
A party seeking to vacate an order entered upon his or her default in opposing amotion must demonstrate both a reasonable excuse for the default and a potentiallymeritorious opposition to the motion (see CPLR 5015 [a] [1]; Political Mktg., Int'l, Inc. vJaliman, 67 AD3d 661, 661-662 [2009]). "A motion to vacate a default isaddressed to the sound discretion of the court" (Vujanic v Petrovic, 103 AD3d 791, 792 [2013]).
Here, the plaintiff demonstrated a reasonable excuse for his default in opposing thedefendants' motion for summary judgment dismissing the complaint (see Chery v Castello, 87 AD3d520, 520 [2011]; Political Mktg., Int'l, Inc. v Jaliman, 67 AD3d at 661-662).The plaintiff also presented competent medical evidence sufficient to establish apotentially meritorious opposition to the defendants' motion (see CPLR 5015 [a][1]; Chery v Castello, 87 AD3d at 520; Political Mktg., Int'l, Inc. vJaliman, 67 AD3d at 662).
Furthermore, the plaintiff's submissions were sufficient to defeat the defendants'motion for summary judgment dismissing the complaint. In response to the defendants'prima facie showing of entitlement to judgment as a matter of law, the medical evidencepresented by the [*2]plaintiff raised a triable issue of fact(see Cruz v Advanced ConcreteLeasing Corp., 101 AD3d 666, 667 [2012]).
Accordingly, the Supreme Court should have granted the plaintiff's motion, whichwas, in actuality, to vacate the order dated August 19, 2011, granting the defendants'motion for summary judgment dismissing the complaint upon the plaintiff's default inopposing that motion, and thereupon, to deny the defendants' motion for summaryjudgment dismissing the complaint (see CPLR 5015 [a] [1]; Chery vCastello, 87 AD3d at 520; Political Mktg., Int'l, Inc. v Jaliman, 67 AD3d at662). Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.