Turko v. Daffy's, Inc.

• Decision Date: 06 November 2013
• Citation: 974 N.Y.S.2d 126,111 A.D.3d 615,2013 N.Y. Slip Op. 07166
• Parties: Galyna TURKO, appellant, v. DAFFY'S, INC., et al., respondents.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 615

974 N.Y.S.2d 126

2013 N.Y. Slip Op. 07166

Galyna TURKO, appellant,

v.DAFFY'S, INC., et al., respondents.

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

Nov. 6, 2013.

Newman, Anzalone & Newman, LLP, Forest Hills, N.Y. (Lucille Anzalone of counsel), for appellant.

O'Connor Redd LLP, White Plains, N.Y. (Jade M. Cameron of counsel), for respondent Daffy's, Inc.

Perez & Varvaro, Uniondale, N.Y. (Joseph Varvaro of counsel), for respondent Schwartz & Benjamin, Inc.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), dated February 9, 2011, which denied her motion, in effect, to vacate an order of the same court (McCarty III, J.) dated August 23, 2010, granting, without opposition, the defendants' respective motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them.

ORDERED that the order dated February 9, 2011, is affirmed, with one bill of costs.

The defendants separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. After the parties stipulated to adjourn the motions for approximately one month, the motion support clerk of the Supreme Court mistakenly marked the motions fully submitted, rather than adjourned. The court granted the defendants' motions, but its order was dated after the stipulated adjournment date. The plaintiff had not submitted opposition papers by the stipulated adjournment date or sought a further adjournment of the motions. Several months later, the plaintiff moved, in effect, to vacate the order granting the defendants' motions for summary judgment. The Supreme Court denied the motion, and the plaintiff appeals.

To vacate the order entered on her default in answering the defendants' motions for summary judgment, the plaintiff was required to demonstrate a reasonable excuse for her default and a potentially meritorious opposition to the motions ( seeCPLR 5015[a][1]; Herrera v. MTA Bus Co., 100 A.D.3d 962, 963, 954 N.Y.S.2d 631;Tsikotis v. Pioneer Bldg. Corp., 96 A.D.3d 936, 936, 946 N.Y.S.2d 491;Walker v. Mohammed, 90 A.D.3d 1034, 1034, 934 N.Y.S.2d 854;Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389, 392, 850 N.Y.S.2d 629). The determination of whether a proffered excuse is reasonable rests within the sound discretion of the Supreme Court ( see Herrera v. MTA Bus Co., 100 A.D.3d at 963, 954 N.Y.S.2d 631;Walker v. Mohammed, 90 A.D.3d at 1034, 934 N.Y.S.2d 854). Here, the stipulation adjourning the defendants' motions for summary judgment would have provided the plaintiff with a reasonable excuse for her failure to submit opposition papers by the original return date, but only if she had filed the opposition papers in accordance with the stipulated adjournment date ( cf. Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114). Having failed to file papers in opposition to the defendants' motions, the plaintiff may not rely on the clerk's error as a reasonable excuse for defaulting on the motions. The plaintiff's additional assertion that ongoing...