| Young Su Hwangbo v Nastro |
| 2017 NY Slip Op 06397 [153 AD3d 963] |
| August 30, 2017 |
| Appellate Division, Second Department |
[*1]
| Young Su Hwangbo et al., Plaintiffs, v Daniel Nastro etal., Defendants. Law Offices of Andrew Park, P.C., Nonparty Appellant; Law Offices of CharlesKhym, P.C., Nonparty Respondent. |
Law Offices of Andrew Park, P.C., New York, NY (Steve J. Park of counsel),nonparty-appellant pro se.
Gary S. Park, Flushing, NY (Yosef Lee of counsel), for nonparty-respondent.
In an action to recover damages for personal injuries, nonparty Law Offices of Andrew Park,P.C., appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), entered May22, 2015, which denied its motion (1) pursuant to CPLR 5015 to vacate an order of the samecourt entered November 13, 2014, denying its application to extend the time to provide the courtwith proof of the work it performed on behalf of the plaintiffs Jung Mi Gimm and Erin Gimmbeyond the deadline set forth in a prior order of the same court entered August 22, 2014, and, suasponte, deeming its right to an attorney's charging lien pursuant to Judiciary Law§ 475 and request for an allocation of attorney's fees abandoned based on its failureto comply with the deadline, and (2) to modify the prior order entered August 22, 2014, byextending the deadline.
Ordered that the order entered May 22, 2015, is reversed, on the facts and in the exercise ofdiscretion, with costs, the motion of the nonparty Law Offices of Andrew Park, P.C., pursuant toCPLR 5015 to vacate the order entered November 13, 2014, and to modify the order enteredAugust 22, 2014, by extending the time to provide the Supreme Court with proof of the workperformed by it on behalf of the plaintiffs Jung Mi Gimm and Erin Gimm is granted, the orderentered November 13, 2014, is vacated, the order entered August 22, 2014, is modified so as todelete the September 4, 2014, submission deadline, and the matter is remitted to the SupremeCourt, Queens County, to determine a new deadline by which the nonparty Law Offices ofAndrew Park, P.C., and the nonparty Law Offices of Charles Khym, P.C., are required to submitproof of the work performed by each of them on behalf of the plaintiffs Jung Mi Gimm and ErinGimm in this action, and thereafter for a determination of the allocation of attorney's feesbetween them.
The plaintiffs Jung Mi Gimm and Erin Gimm (hereinafter together the plaintiffs) allegedlywere injured in a motor vehicle accident. Initially, the plaintiffs sought counsel from the nonpartyLaw Offices of Charles Khym, P.C. (hereinafter the Khym firm). However, prior tocommencement of this action to recover damages for their alleged injuries, in February 2010, theplaintiffs changed representation to Sim & Park, LLP, the predecessor of the nonparty LawOffice of Andrew Park, P.C. (hereinafter the Park firm). The Park firm then represented theplaintiffs from the commencement of this action through discovery to a post-note of issue pretrialconference. [*2]Subsequently, in August 2012, the plaintiffschanged representation back to the Khym firm. The Khym firm eventually settled the case onbehalf of the plaintiffs before trial.
The Park firm moved to fix and enforce its right to a charging lien against the plaintiffs'settlement proceeds. In an order entered August 22, 2014 (hereinafter the August 2014 order), theSupreme Court determined, in effect, that the Park firm was entitled to a proportionate share ofthe contingency fee of 33
By facsimile transmission to the Supreme Court dated October 30, 2014, the Park firmrequested an extension of time on behalf of both firms to comply with the directive set forth inthe August 2014 order. In support of its application, the Park firm explained that it had notreceived a copy of the August 2014 order until October 16, 2014, after the deadline fixed in theorder had already passed. The application was also supported by a copy of the affidavit of legalservices and exhibits that had previously been provided to the court during motion practice.
In an order entered November 13, 2014 (hereinafter the November 2014 order), the SupremeCourt denied the Park firm's application for an extension of time, finding that it had failed tooffer a reasonable excuse for its failure to "follow up for a decision" on its motion. The courtalso, sua sponte, deemed the Park firm's right to an attorney's charging lien pursuant to JudiciaryLaw § 475 and request for an allocation of attorney's fees abandoned. The Park firmthen moved pursuant to CPLR 5015 to vacate the November 2014 order and to modify theAugust 2014 order by extending the September 4, 2014 deadline, attributing its delay inobtaining a copy of the August 2014 order to the fact that the attorney handling the matter on itsbehalf had left the firm. The court denied the Park firm's motion. The Park firm appeals.
Pursuant to CPLR 5015 (a) (1), a party seeking to vacate a default must demonstrate areasonable excuse for his or her default and a potentially meritorious claim or defense(see CPLR 5015 [a] [1]; Matterof Sylvia G. [Carniello—Marlowe], 139 AD3d 851, 853 [2016]). Thedetermination of what constitutes a reasonable excuse lies within the Supreme Court's discretion(see New York Hosp. Med. Ctr. ofQueens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]). "Whether aproffered excuse is 'reasonable' is a 'sui generis determination to be made by the court based onall relevant factors, 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 favor ofresolving cases on the merits' " (Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2013], quoting Harcztark v Drive Variety, Inc., 21AD3d 876, 876-877 [2005]; seeBrinson v Pod, 129 AD3d 1005, 1008-1009 [2015]; Suede v Suede, 124 AD3d 869, 871 [2015]). "Documented lawoffice failure may constitute a reasonable excuse" (Moore v Day, 55 AD3d 803, 804 [2008]; see CPLR 2005;Servilus v Walcott, 148 AD3d743, 744 [2017]).
Here, considering all of the relevant factors, including the brief delay between the submissiondeadline set by the Supreme Court and the date on which the Park firm requested an extension oftime, the lack of prejudice to the Khym law firm, the fact that the Khym firm would retain theentire attorney's fee despite the fact that it defaulted in submitting any proof to the court withrespect to the work it performed on behalf of the plaintiffs, and the lack of willfulness on the partof the Park firm, the court improvidently exercised its discretion in not accepting the Park firm'sexcuse of law office failure for its default in meeting the deadline set forth in the August 2014order (see Oller v Liberty Lines Tr.,Inc., 111 AD3d 903, 904 [2013]; Toll Bros., Inc. v Dorsch, 91 AD3d 755, 756 [2012]; Zaidi v New York Bldg. Contrs., Ltd.,61 AD3d 747, 748 [2009]; Dorio vCounty of Suffolk, 58 AD3d 594, 595 [2009]; Moore v Day, 55 AD3d at804-805).
[*3] Furthermore, the Park firmdemonstrated that it had a potentially meritorious claim to its charging lien against the plaintiffs'settlement proceeds, which the Supreme Court had already determined the Park firm was entitledto before it later determined, sua sponte, that the Park firm had abandoned its right to the lien(see Judiciary Law § 475; Lai Ling Cheng v Modansky Leasing Co.,73 NY2d 454, 458 [1989]).
Accordingly, the Supreme Court should have granted the Park firm's motion to vacate theNovember 2014 order and to modify the August 2014 order by extending the time by which thePark firm and the Khym firm must provide the court with proof of the work they performed onbehalf of the plaintiffs in this action. Dillon, J.P., Austin, Hinds-Radix and LaSalle, JJ.,concur.