| Jong Il Lee v En Salto |
| 2013 NY Slip Op 04779 [107 AD3d 950] |
| June 26, 2013 |
| Appellate Division, Second Department |
| Jong Il Lee, Respondent, v Devizhnav En Salto etal., Defendants, and Lisa A. Coon et al., Appellants. |
—[*1] Sim & Park, LLP, New York, N.Y. (Andrew Park of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Lisa A. Coonand William Coon appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Hart, J.), entered May 21, 2012, as granted theplaintiff's motion to vacate an order of the same court dated May 16, 2011, granting,upon the plaintiff's default, their motion for summary judgment dismissing the complaintinsofar as asserted against them on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d), and thereupon denied theirmotion for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order entered May 21, 2012, is modified, on the law, by deleting theprovision thereof, upon the vacatur of the order dated May 16, 2011, denying theappellants' motion for summary judgment dismissing the complaint insofar as assertedagainst them, and substituting therefor a provision granting, on the merits, the appellants'motion for summary judgment dismissing the complaint insofar as asserted against them;as so modified, the order entered May 21, 2012, is affirmed insofar as appealed from,with costs to the appellants.
In order to vacate an order entered on default, a plaintiff is required to demonstrateboth a reasonable excuse for the default and a potentially meritorious opposition to themotion (see CPLR 5015 [a] [1]; Needleman v Tornheim, 106 AD3d 707 [2013]; HSBC Bank USA N.A. v Nuteh 72Realty Corp., 70 AD3d 998, 999 [2010]). "A decision to vacate a prior order orjudgment rests in the sound discretion of the court and will be upheld in the absence ofan improvident exercise of that discretion" (Epps v LaSalle Bus, 271 AD2d 400,400 [2000]; see Mita v Bianchi, 286 AD2d 376 [2001]). Here, the SupremeCourt providently exercised its discretion in granting the plaintiff's motion to vacate itsprior order, which was entered upon the plaintiff's default in opposing the appellants'motion for summary judgment dismissing the complaint insofar as asserted against them.
However, the appellants met their prima facie burden of showing that the plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) asa result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). [*2]The appellants submitted competent medical evidenceestablishing, prima facie, that the alleged injuries to the plaintiff's right shoulder and tothe cervical and lumbar regions of his spine did not constitute serious injuries undereither the permanent consequential limitation of use or significant limitation of usecategories of Insurance Law § 5102 (d) (see Staff v Yshua, 59 AD3d 614 [2009]). Further, theappellants submitted evidence establishing, prima facie, that the plaintiff did not sustain aserious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Richards v Tyson, 64AD3d 760, 761 [2009]).
The plaintiff failed to raise a triable issue of fact in opposition. Therefore, uponvacating the earlier order, the Supreme Court should have granted, on the merits, theappellants' motion for summary judgment dismissing the complaint insofar as assertedagainst them. Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.