| Adotey v British Airways, PLC |
| 2016 NY Slip Op 08341 [145 AD3d 748] |
| December 14, 2016 |
| Appellate Division, Second Department |
[*1](December 14, 2016)
| Rosemond Adotey et al., Appellants, v BritishAirways, PLC, et al., Respondents, et al., Defendant. |
The Adam Law Office, P.C., New York, NY (Richard Adam of counsel), forappellants.
Condon & Forsyth LLP, New York, NY (Kevin J. Bishop and Anthony U.Battista of counsel), for respondent British Airways, PLC.
Gallo Vitucci Klar, LLP, New York, NY (Kimberly A. Ricciardi of counsel), forrespondents ABM Industries Incorporated, ABM Industries, Inc., and ABM EngineeringServices Company.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), aslimited by their brief, from so much of an order of the Supreme Court, Rockland County(Loehr, J.), dated February 21, 2014, as denied their request for an adjournment of amotion return date and an extension of time to file opposition papers, and thereupongranted the separate unopposed motions of the defendant British Airways, PLC, and thedefendants ABM Industries Incorporated, ABM Industries, Inc., and ABM EngineeringServices Company for summary judgment dismissing the complaint insofar as assertedagainst each of them, and (2) a judgment of the same court dated February 28, 2014,which, upon the order, is in favor of the defendants ABM Industries Incorporated, ABMIndustries, Inc., and ABM Engineering Services Company and against the plaintiffs,dismissing the complaint insofar as asserted against those defendants. The notice ofappeal from the order is deemed also to be a notice of appeal from the judgment(see CPLR 5501 [c]).
Ordered that the appeal from so much of the order as denied the plaintiffs' request foran adjournment of a motion return date and an extension of time to file opposition papersto the motion of the defendants ABM Industries Incorporated, ABM Industries, Inc., andABM Engineering Services Company and granted the separate unopposed motions of thedefendant British Airways, PLC, and the defendants ABM Industries Incorporated, ABMIndustries, Inc., and ABM Engineering Services Company for summary judgmentdismissing the complaint insofar as asserted against each of them is dismissed; and it isfurther,
Ordered that the appeal from the judgment is dismissed except insofar as it brings upfor review the denial of the plaintiffs' request for an adjournment of a motion return dateand an extension of time to file opposition papers to the motion of the defendants ABMIndustries Incorporated, ABM Industries, Inc., and ABM Engineering Services Company(see CPLR 5511); [*2]and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately andfiling separate briefs payable by the appellants.
The appeal from so much of the order as denied the plaintiffs' request for anadjournment of a motion return date and an extension of time to file opposition papers tothe motion of the defendants ABM Industries Incorporated, ABM Industries, Inc., andABM Engineering Services Company must be dismissed as that portion of the order isnot appealable as of right, and any possibility of taking a direct appeal therefromterminated with the entry of the judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The appeal from so much of the order as granted the separateunopposed motions of the defendant British Airways, PLC, and the defendants ABMIndustries Incorporated, ABM Industries, Inc., and ABM Engineering Services Companyfor summary judgment dismissing the complaint insofar as asserted against each of themmust be dismissed on the ground that no appeal lies from an order or judgment grantedupon the default of the appealing party (see CPLR 5511) and, in any event, withrespect to the defendants ABM Industries Incorporated, ABM Industries, Inc., and ABMEngineering Services Company, because the order was superseded by the judgmententered in the action dismissing the complaint insofar as asserted against them.
The plaintiffs failed to submit papers to the Supreme Court in opposition to therespondents' separate motions for summary judgment dismissing the complaint insofar asasserted against each of them, and the motions were therefore granted on default (see J.F.J. Fuel, Inc. v Tran CampContr. Corp., 105 AD3d 908, 908 [2013]). No appeal lies from an order orjudgment granted upon the default of the appealing party (see CPLR 5511; T. Mina Supply, Inc. v ClementeBros. Contr. Corp., 139 AD3d 1038, 1038 [2016]). Since the order upon whichthe judgment was entered was made upon the plaintiffs' default, "review is limited tomatters which were the subject of contest below" (Brown v DataCommunications, 236 AD2d 499, 499 [1997]; see James v Powell, 19 NY2d249, 256 n 3 [1967]; Hawes vLewis, 127 AD3d 921, 922 [2015]; Matter of Constance P. v Avraam G., 27 AD3d 754, 755[2006]). Accordingly, in this case, review is limited to the denial of the plaintiffs' requestfor an adjournment of the return date and an extension of time to file opposition papers(see Hawes v Lewis, 127 AD3d at 922).
The granting of an adjournment for any purpose rests within the sound discretion ofthe Supreme Court (see Matterof Steven B., 6 NY3d 888, 889 [2006]), and its determination will not bedisturbed absent an improvident exercise of that discretion (see Diamond v Diamante, 57AD3d 826, 827 [2008]). In deciding whether to grant an adjournment, the courtmust engage in a balanced consideration of numerous relevant factors (see Hawes vLewis, 127 AD3d at 922). It is not an improvident exercise of discretion to deny anadjournment where the need for such a request is based on the movant's failure toexercise due diligence (seeMatter of Breaker v ACS-Kings, 129 AD3d 715, 716 [2015]; see alsoArmele v Moose Intl., 302 AD2d 986, 986 [2003]).
In addition, while a court has the discretion to grant an extension of time to fileopposition papers, it must be upon a showing of good cause (see CPLR 2004).The delinquent party must offer a valid excuse for the delay (see Kubicsko v WestchesterCounty Elec., Inc., 116 AD3d 737, 739 [2014]).
Under the circumstances of this case, the Supreme Court did not improvidentlyexercise its discretion in denying the plaintiffs' request for an adjournment of the returndate and an extension of time to file opposition papers. The plaintiffs did not make anadequate showing of good cause because they did not offer a valid excuse for theextension (see generally id. at 739; Mosheyeva v Distefano, 288 AD2d448, 449 [2001]), and the record reflected that the need for an adjournment resulted froma lack of due diligence on their part (see generally Matter of Breaker v [*3]ACS-Kings, 129 AD3d at 716; Armele v MooseIntl., 302 AD2d at 987). Leventhal, J.P., Maltese, LaSalle and Brathwaite Nelson,JJ., concur.