Smyth v. Getty Petroleum Mktg., Inc.

• Decision Date: 20 February 2013
• Citation: 103 A.D.3d 790,959 N.Y.S.2d 543,2013 N.Y. Slip Op. 01075
• Parties: Robert J. SMYTH, respondent, v. GETTY PETROLEUM MARKETING, INC., defendant, Star 260 Realty, LLC, et al., appellants.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 790
959 N.Y.S.2d 543
2013 N.Y. Slip Op. 01075

Robert J. SMYTH, respondent,
v.
GETTY PETROLEUM MARKETING, INC., defendant,
Star 260 Realty, LLC, et al., appellants.

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

Feb. 20, 2013.

[959 N.Y.S.2d 544]

Goldberg Segalla LLP, Garden City, N.Y. (Brendan T. Fitzpatrick and Christopher M. Hart of counsel), for appellants.

Callahan & Fusco, LLC, New York, N.Y. (Brian R. Masterson and Mark P. Bradley of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

[103 A.D.3d 790]In an action to recover damages for personal injuries, the defendants Star 260 Realty, LLC, and Horizon Star Services, LLC, appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated June 1, 2012, as granted the plaintiff's motion, in effect, to vacate so much of a prior order of the same court dated September 23, 2011, as granted their unopposed motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them.

ORDERED that the order dated June 1, 2012, is affirmed insofar as appealed from, with costs.

To warrant vacatur of so much of the order dated September 23, 2011 (hereinafter the default order), as granted the appellants' motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them upon the plaintiff's failure to oppose that motion, the plaintiff was required to demonstrate a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion ( seeCPLR 5015[a][1]; Infante v. Breslin Realty Dev. Corp., 95 A.D.3d 1075, 1076, 944 N.Y.S.2d 608;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). The plaintiff asserted that his failure to oppose the appellants' motion pursuant to CPLR 3126 and to provide outstanding discovery resulted from his prior attorney's neglect of the matter and failure to communicate with him ( see Deutsche Bank Natl. Trust Co. v. Luden, 91 A.D.3d 701, 936 N.Y.S.2d 561;Wagner v. 119 Metro, LLC, 59 A.D.3d 531, 533, 873 N.Y.S.2d 177;Hageman v. Home Depot U.S.A., Inc., 25 A.D.3d 760, 761, 808 N.Y.S.2d 763;Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109;Halikiopoulos v. New York Hosp. Med. Ctr. of Queens, 284 A.D.2d 373, 374, 725 N.Y.S.2d 895). When the plaintiff discovered...