Infante v. Breslin Realty Dev. Corp.

• Citation: 944 N.Y.S.2d 608,95 A.D.3d 1075,2012 N.Y. Slip Op. 03809
• Parties: Inocencio INFANTE, appellant, v. BRESLIN REALTY DEVELOPMENT CORP., defendant third-party plaintiff-respondent, et al., defendant; Toys “R” Us, doing business as Babies “R” Us, et al., third-party defendants-respondents.
• Decision Date: 15 May 2012
• Court: New York Supreme Court Appellate Division

95 A.D.3d 1075

944 N.Y.S.2d 608

2012 N.Y. Slip Op. 03809

Inocencio INFANTE, appellant,

v. BRESLIN REALTY DEVELOPMENT CORP., defendant third-party plaintiff-respondent, et al., defendant;Toys “R” Us, doing business as Babies “R” Us, et al., third-party defendants-respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 15, 2012.

Dell, Little, Trovato & Vecere, LLP, Bohemia, N.Y. (Christopher J. Pogan of counsel), for appellant.

Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin J. Bryant of counsel), for defendant third-party plaintiff-respondent.

Chesney & Murphy, LLP, Baldwin, N.Y. (Marie I. Goutzounis of counsel), for third-party defendant-respondent Toys “R” Us, doing business as Babies “R” Us.

Goldberg Segalla, LLP, Garden City, N.Y. (Marianne Arcieri of counsel), for third-party defendant-respondent Centimark Corporation.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), entered July 14, 2010, which denied his motion to vacate a prior order of the same court dated August 11, 2008, granting the unopposed motion of the defendant Breslin Realty Development Corporation pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it based upon his failure to comply with, inter alia, court-ordered discovery, and to restore the action to active status. The appeal brings up for review so much of an order of the same court dated April 29, 2011, as, upon reargument, adhered to the original determination in the order entered July 14, 2010 ( seeCPLR 5517 [b] ).

ORDERED that the appeal from the order entered July 14, 2010, is dismissed, as that order was superseded by the order dated April 29, 2011, made upon reargument; and it is further,

ORDERED that the order dated April 29, 2011, is reversed insofar as reviewed, on the facts and in the exercise of discretion, and, upon reargument, the order entered July 14, 2010, is vacated, and thereupon, the plaintiff's motion to vacate the order dated August 11, 2008, and to restore the action to active status is granted, the order dated August 11, 2008, is vacated, and the motion of the defendant Breslin Realty Development Corporation pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it is denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In order for the plaintiff to prevail on his motion to vacate his default in opposing the motion of the defendant Breslin Realty Development Corp. (hereinafter Breslin) to dismiss the complaint insofar as asserted against it pursuant to CPLR 3126 due to the plaintiff's failure to comply with, inter alia, court-ordered discovery, the plaintiff was required to demonstrate a reasonable excuse for his default ( seeCPLR 5015[a][1] ) and the existence of a potentially meritorious opposition to Breslin's motion ( see Dokaj v. Ruxton Tower Ltd. Partnership, 91 A.D.3d 812, 813, 938 N.Y.S.2d 101;New Seven Colors Corp. v. White Bubble Laundromat, Inc., 89 A.D.3d 701, 702, 931 N.Y.S.2d 899;L & L Auto Distribs. & Suppliers Inc. v. Auto Collection, Inc., 85 A.D.3d 734, 735, 925 N.Y.S.2d 151;Remote Meter Tech. of N.Y., Inc. v. Aris Realty Corp., 83 A.D.3d 1030, 1032, 922 N.Y.S.2d 440;Bazoyah v. Herschitz, 79 A.D.3d 1081, 913 N.Y.S.2d 769). The determination of what constitutes a reasonable excuse lies within the court's discretion ( see Santiago v. New York City Health & Hosps. Corp., 10 A.D.3d 393, 394, 780 N.Y.S.2d 764;Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66;Grutman v. Southgate At Bar Harbor Home Owners' Assn., 207 A.D.2d 526, 527, 616 N.Y.S.2d 68). The court has the discretion to accept law office failure as a reasonable excuse ( seeCPLR 2005; Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114).

The plaintiff demonstrated a reasonable excuse for his default in opposing Breslin's motion to dismiss the complaint insofar as asserted against it. By notice of motion dated July 23, 2007, Breslin moved to dismiss the complaint. Thereafter, one of the third-party defendants moved to dismiss Breslin's third party complaint and the defendant Modell's Sporting Goods, Inc. (hereinafter Modell's), moved to dismiss the complaint insofar as asserted against it. The plaintiff opposed Modell's motion but did not oppose Breslin's motion. In support of the plaintiff's...