| Turko v Daffy's, Inc. |
| 2013 NY Slip Op 07166 [111 AD3d 615] |
| November 6, 2013 |
| Appellate Division, Second Department |
| Galyna Turko, Appellant, v Daffy's, Inc., et al.,Respondents. |
—[*1] O'Connor Redd LLP, White Plains, N.Y. (Jade M. Cameron of counsel), forrespondent Daffy's, Inc. Perez & Varvaro, Uniondale, N.Y. (Joseph Varvaro of counsel), for respondentSchwartz & Benjamin, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Jaeger, J.), dated February 9, 2011, whichdenied her motion, in effect, to vacate an order of the same court (McCarty III, J.) datedAugust 23, 2010, granting, without opposition, the defendants' respective motions forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst each of them.
Ordered that the order dated February 9, 2011, is affirmed, with one bill of costs.
The defendants separately moved for summary judgment dismissing the complaintand all cross claims insofar as asserted against them. After the parties stipulated toadjourn the motions for approximately one month, the motion support clerk of theSupreme Court mistakenly marked the motions fully submitted, rather than adjourned.The court granted the defendants' motions, but its order was dated after the stipulatedadjournment date. The plaintiff had not submitted opposition papers by the stipulatedadjournment date or sought a further adjournment of the motions. Several months later,the plaintiff moved, in effect, to vacate the order granting the defendants' motions forsummary judgment. The Supreme Court denied the motion, and the plaintiff appeals.
To vacate the order entered on her default in answering the defendants' motions forsummary judgment, the plaintiff was required to demonstrate a reasonable excuse for herdefault and a potentially meritorious opposition to the motions (see CPLR 5015[a] [1]; Herrera v MTA BusCo., 100 AD3d 962, 963 [2012]; Tsikotis v Pioneer Bldg. Corp., 96 AD3d 936, 936 [2012];Walker v Mohammed, 90AD3d 1034, 1034 [2011]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389,392 [2008]). The determination of whether a proffered excuse is reasonable rests withinthe sound discretion of the Supreme Court (see Herrera v MTA Bus Co., 100AD3d at 963; Walker v Mohammed, 90 AD3d at 1034). Here, the stipulationadjourning the defendants' motions for summary judgment would have provided theplaintiff with a reasonable excuse for her failure to submit opposition papers by theoriginal return date, but only if she had filed the opposition papers in accordance with thestipulated adjournment date (cf.Henry v Kuveke, 9 AD3d 476, 479 [2004]). Having failed to file papers inopposition to the defendants' motions, the plaintiff may not rely on the clerk's error as areasonable excuse for defaulting on the motions. The plaintiff's additional assertion thatongoing settlement negotiations excused her failure to answer the defendants' motions iswithout merit (see Kouzios vDery, 57 AD3d 949, 950 [2008]; Antoine v Bee, 26 AD3d 306, 306 [2006]). In light of theplaintiff's failure to provide a reasonable excuse for her default in opposing thedefendants' motions for summary judgment, we need not evaluate whether the plaintiffdemonstrated that she had a potentially meritorious opposition to the motions (seeHerrera v MTA Bus Co., 100 AD3d at 963; Antoine v Bee, 26 AD3d at306).
The plaintiff's remaining contentions are raised for the first time on appeal and,therefore, are not properly before this Court (see Matter of Hurston v Southlea, 91 AD3d 952 [2012]).
Accordingly, the Supreme Court did not improvidently exercise its discretion indenying the plaintiff's motion to vacate its order granting the defendants' motions forsummary judgment on default (see Herrera v MTA Bus Co., 100 AD3d at 963;Glukhman v Bay 49th St.Condominium, LLC, 100 AD3d 594, 595-596 [2012]). Mastro, J.P., Balkin,Sgroi and Hinds-Radix, JJ., concur.