| Oller v Liberty Lines Tr., Inc. |
| 2013 NY Slip Op 07946 [111 AD3d 903] |
| November 27, 2013 |
| Appellate Division, Second Department |
| Eliseo Oller, an Infant by His Mother and NaturalGuardian, Miriam DeJesus, et al., Appellants, v Liberty Lines Transit, Inc., et al.,Respondents. |
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In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Westchester County (Lefkowitz, J.), entered November 7,2012, which denied their unopposed motion, in effect, to vacate so much of a prior orderof the same court entered July 3, 2012, as granted that branch of the defendants'unopposed motion which was pursuant to CPLR 3126 to preclude the plaintiffs fromintroducing evidence at trial of the infant plaintiff's neurological injuries based upon theinfant plaintiff's failure to appear for a neurological examination.
Ordered that the order entered November 7, 2012, is reversed, on the facts and in theexercise of discretion, without costs or disbursements, and the plaintiffs' unopposedmotion, in effect, to vacate so much of the order entered July 3, 2012, as granted thatbranch of the defendants' unopposed motion which was pursuant to CPLR 3126 topreclude the plaintiffs from introducing evidence at trial of the infant plaintiff'sneurological injuries is granted.
To vacate their default in opposing that branch of the defendants' motion which waspursuant to CPLR 3126 to preclude the plaintiffs from introducing evidence at trial of theinfant plaintiff's neurological injuries, which was granted in an order entered July 3,2012, the plaintiffs were required to demonstrate both a reasonable excuse for the defaultand a potentially meritorious opposition to that branch of the motion (see CPLR5015 [a] [1]; Schenk v Staten Is.Univ. Hosp., 108 AD3d 661, 662 [2013]; Smyth v Getty Petroleum Mktg., Inc., 103 AD3d 790[2013]; Infante v Breslin RealtyDev. Corp., 95 AD3d 1075, 1076 [2012]). "Whether a proffered excuse is'reasonable' is a 'sui generis determination to be made by the court based on all relevantfactors, including the extent of the delay, whether there has been prejudice to theopposing party, whether there has been willfulness, and the strong public policy in favorof resolving cases on the merits' " (Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2013],quoting Harcztark v DriveVariety, Inc., 21 AD3d 876, 876-877 [2005]). Considering all of the relevantfactors here, including the lack of prejudice to the defendants, the lack of willfulness onthe part of the plaintiffs, and the fact that the parties entered into a stipulation to vacatethe order entered July 3, 2012, just 15 days after that order was entered, the SupremeCourt should have accepted the plaintiffs' excuse for the default (see Moore v Day, 55 AD3d803, 804 [2008]; Hospitalfor Joint Diseases v Dollar Rent A Car, 25 AD3d 534 [2006]; Harcztark v Drive Variety,Inc., 21 AD3d 876 [2005]; Orwell Bldg. Corp. v Bessaha, 5 AD3d 573 [2004]).[*2]
Furthermore, the plaintiffs demonstrated apotentially meritorious opposition to the subject branch of the defendants' motion. Thedefendants failed to provide an affirmation of a good-faith effort to resolve the discoverydispute as required by Uniform Rules for Trial Courts (22 NYCRR) § 202.7 (see Quiroz v Beitia, 68 AD3d957, 960 [2009]; Natoli vMilazzo, 65 AD3d 1309, 1310 [2009]; Barnes v NYNEX, Inc., 274AD2d 368 [2000]). In any event, there was no clear showing that the plaintiffs' failure tocomply with a compliance conference order entered May 7, 2012, was willful andcontumacious (see Zakhidov vBoulevard Tenants Corp., 96 AD3d 737, 739 [2012]; Moray v City of Yonkers, 76AD3d 618, 619 [2010]; Assael v Metropolitan Tr. Auth., 4 AD3d 443, 444 [2004]).Accordingly, the plaintiffs' motion should have been granted. Angiolillo, J.P., Hall,Roman and Cohen, JJ., concur.