Swensen v. MV Transp., Inc.

Citation2011 N.Y. Slip Op. 08346,89 A.D.3d 924,933 N.Y.S.2d 96
PartiesCharles SWENSEN, respondent, v. MV TRANSPORTATION, INC., et al., appellants, et al., defendants.
Decision Date15 November 2011
CourtNew York Supreme Court Appellate Division

2011 N.Y. Slip Op. 08346
89 A.D.3d 924
933 N.Y.S.2d 96

Charles SWENSEN, respondent,
v.
MV TRANSPORTATION, INC., et al., appellants, et al., defendants.

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

Nov. 15, 2011.


[933 N.Y.S.2d 97]

Zaklukiewicz Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Daniel E. Furshpan of counsel), for appellants.

Laurence Jeffrey Weingrad, New York, N.Y., for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

[89 A.D.3d 925] In an action to recover damages for personal injuries, the defendants MV Transportation, Inc., and Jeffrey Salley appeal from an order of the Supreme Court, Kings County (Rothenberg, J.), dated June 4, 2010, which granted the plaintiff's motion to vacate an order of the same court entered February 25, 2009, granting

[933 N.Y.S.2d 98]

their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), upon the plaintiff's default in opposing the motion.

ORDERED that the order is affirmed, with costs.

To vacate his default in opposing the motion of the defendants MV Transportation, Inc., and Jeffrey Salley (hereinafter together the appellants), the plaintiff was required to demonstrate a reasonable excuse for the default in opposing the motion and a potentially meritorious opposition to the motion ( see CPLR 5015[a][1]; Ogunmoyin v. 1515 Broadway Fee Owner, LLC, 85 A.D.3d 991, 925 N.Y.S.2d 844; Legaretta v. Ekhstor, 74 A.D.3d 899, 902 N.Y.S.2d 375; Rivera v. Komor, 69 A.D.3d 833, 892 N.Y.S.2d 769; Nowell v. NYU Med. Ctr., 55 A.D.3d 573, 865 N.Y.S.2d 309). The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion ( see White v. Incorporated Vil. of Hempstead, 41 A.D.3d 709, 710, 838 N.Y.S.2d 607), and the Supreme Court has the discretion to accept law office failure as a reasonable excuse ( see CPLR 2005) where that claim is supported by a “detailed and credible” explanation of the default or defaults at issue ( Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114).

Here, the plaintiff's counsel provided a detailed and credible explanation for his default in this matter, which included various acts of misconduct and deception by his former associate attorney who worked on the plaintiff's matter. The plaintiff also demonstrated a potentially...

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  • Gately v. Drummond, 2016–00258
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    ...vacate his default (see Scholem v. Acadia Realty L.P., 144 A.D.3d at 1013, 42 N.Y.S.3d 214 ; 77 N.Y.S.3d 522 Swensen v. MV Transp., Inc., 89 A.D.3d 924, 925, 933 N.Y.S.2d 96 ). In addition, there was no showing of prejudice to the plaintiff, and no evidence that the defendant willfully defa......
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    ...the Supreme Court has the discretion to accept law office failure as a reasonable excuse ( seeCPLR 2005; Swensen v. MV Transp., Inc., 89 A.D.3d 924, 925, 933 N.Y.S.2d 96), the excuse must be supported by detailed allegations of fact explaining the law office failure ( see Matter of Esposito......
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    ...2005) where that claim is supported by a “ ‘detailed and credible’ ” explanation of the default at issue ( Swensen v. MV Transp., Inc., 89 A.D.3d 924, 925, 933 N.Y.S.2d 96, quoting Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114). Here, the plaintiff failed to establish a reasonable ex......
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