| Braynin v Dunleavy |
| 2013 NY Slip Op 05668 [109 AD3d 571] |
| August 21, 2013 |
| Appellate Division, Second Department |
| Aleksandr Braynin, Appellant, v Edward K.Dunleavy et al., Respondents. |
—[*1] Koors & Jednak, Bronx, N.Y. (Paul W. Koors of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Saitta, J.), dated June 14, 2012, whichgranted the defendants' motion pursuant to CPLR 5015 (a) (1) to vacate a prior order ofthe same court dated February 23, 2012, granting his prior motion for summary judgmenton the issue of liability, upon the defendants' default in opposing the motion, andthereupon denied his motion for summary judgment on the issue of liability.
Ordered that the order dated June 14, 2012, is affirmed, with costs.
The Supreme Court granted the plaintiff's motion for summary judgment on the issueof liability after the defendants failed to appear in opposition to it. The defendantssubsequently moved to vacate the order granting the plaintiff's motion. Upon granting thedefendants' motion to vacate, the Supreme Court denied the plaintiff's motion forsummary judgment.
A motion to vacate a default is addressed to the sound discretion of the motion court(see Kohn v Kohn, 86AD3d 630, 630 [2011]; Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150,1150 [2011]). In determining whether to vacate an order that granted a motion ondefault, the court must determine whether the party seeking vacatur has demonstrated areasonable excuse for its default and a potentially meritorious opposition to the motion(see CPLR 5015 [a] [1]; Simpson v Tommy Hilfiger U.S.A., Inc.,48 AD3d 389, 392 [2008]).
On this appeal, the plaintiff does not contend that the defendants lacked a reasonableexcuse for their default, but only that they had no meritorious opposition to his summaryjudgment motion. We conclude that the defendants demonstrated a potentiallymeritorious opposition to the motion. Indeed, the plaintiff's own moving papersdemonstrated the existence of a triable issue of fact as to whether the defendants were atfault in the happening of the accident (see Gyokchyan v City of New York, 106 AD3d 780,781-782 [2013]; Harris v 11 W.42 Realty Invs., LLC, 98 AD3d 1084 [2012]; Acevedo v New York City Tr.Auth., 97 AD3d 515, 516-517 [2012]). Accordingly, the Supreme Court did notimprovidently exercise its discretion in granting the defendants' motion to vacate theirdefault [*2]and, upon vacatur, the Supreme Courtcorrectly denied the plaintiff's motion for summary judgment on the issue of liability(see Weck v Brett, 288 AD2d 466, 467 [2001]; cf. Simpson v TommyHilfiger U.S.A., Inc., 48 AD3d at 392). Mastro, J.P., Skelos, Balkin and Leventhal,JJ., concur.