| Blazo v Wyckoff Hgts. Med. Ctr. |
| 2015 NY Slip Op 01231 [125 AD3d 705] |
| February 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Craig Blazo, Appellant, v Wyckoff HeightsMedical Center et al., Defendants, and Wyckoff Anesthesia Services, P.C.,Respondent. |
Flanzig and Flanzig, LLP, Mineola, N.Y. (Daniel Flanzig of counsel), forappellant.
Law Offices of Christopher C. Thaens, P.C., New York, N.Y., for respondent.
Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (Lynn C. Hajek ofcounsel), for defendant Wyckoff Heights Medical Center.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffappeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated March21, 2013, which granted the motion of the defendant Wyckoff Anesthesia Services, P.C.,to vacate an order of the same court dated February 18, 2011, granting the plaintiff'sunopposed motion for leave to enter a default judgment against it upon its failure toappear or answer the complaint.
Ordered that the order is affirmed, with costs to the respondent.
A defendant seeking to vacate a default must demonstrate both a reasonable excusefor the default and a potentially meritorious defense (see Pimento v Rojas, 94 AD3d 844, 845 [2012]; Bank of N.Y. Mellon vIzmirligil, 88 AD3d 930, 931 [2011]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).The determination of what constitutes a reasonable excuse is generally left to the sounddiscretion of the Supreme Court (see Apladenaki v Greenpoint Mtge. Funding, Inc., 117 AD3d975, 976 [2014]; Pimento v Rojas, 94 AD3d at 845; Bank of N.Y.Mellon v Izmirligil, 88 AD3d at 931). Here, the Supreme Court did notimprovidently exercise its discretion in finding that the defendant Wyckoff AnesthesiaServices, P.C. (hereinafter Wyckoff Anesthesia) presented a reasonable excuse sufficientto warrant vacating its default (see generally Apladenaki v Greenpoint Mtge.Funding, Inc., 117 AD3d at 976; see also Palmer v Aliberti, 281 AD2d 156[2001]; cf. Wells Fargo Bank, N.A. v Cervini, 84 AD3d at 790; Campbell v Ghafoor, 8 AD3d316, 317 [2004]). Further, Wyckoff Anesthesia established the existence of apotentially meritorious defense to the action. Moreover, there was no showing by theplaintiff that Wyckoff Anesthesia's failure to appear was willful, or that the plaintiff wassignificantly prejudiced by the default (see Apladenaki v Greenpoint Mtge. Funding,Inc., 117 AD3d at 976).
Wyckoff Anesthesia's remaining contention need not be reached in light of ourdetermination.
We decline the request of Wyckoff Anesthesia and the defendant Wyckoff Heights[*2]Medical Center for the imposition of a sanctionagainst the plaintiff for pursuing a frivolous appeal (see Rules of Chief Admin ofCts [22 NYCRR] § 130-1.1 [c]). Balkin, J.P., Chambers, Hinds-Radix andMaltese, JJ., concur.