Wynne v. Wagner

• Decision Date: 21 June 1999
• Citation: 693 N.Y.S.2d 60
• Parties: Clincey WYNNE, appellant, v. Lance WAGNER, etc., respondent.
• Court: New York Supreme Court — Appellate Division

Page 60

693 N.Y.S.2d 60

Clincey WYNNE, appellant, v. Lance WAGNER, etc., respondent.

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

June 21, 1999.

Viders & Wiesen, Carle Place, N.Y. (Kenneth B. Wiesen of counsel), for appellant.

Marulli, Pewarski & Heubel, P.C., New York, N.Y. (Richard A. Hines of counsel), for respondent.

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, DANIEL W. JOY, MYRIAM J. ALTMAN and NANCY E. SMITH, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated July 2, 1998, which granted the defendant's motion, inter alia, for leave to vacate a judgment in the principal sum of $635,000, entered against him upon his default in appearing at trial.

ORDERED that the order is reversed, as a matter of discretion, with costs, the motion is denied, and the judgment is reinstated.

It is well settled that on a motion for leave to vacate a default judgment pursuant to CPLR 5015(a), a defendant must demonstrate a reasonable excuse for the default and a meritorious defense (see, Kolajo v. City of New York, 248 A.D.2d 512, 670 N.Y.S.2d 52; Roussodimou v. Zafiriadis, 238 A.D.2d 568, 657 N.Y.S.2d 66; Fennell v. Mason, 204 A.D.2d 599, 612 N.Y.S.2d 416). While a court may, in its discretion, accept law-office failure as a reasonable excuse (see, CPLR 2005; Putney v. Pearlman, 203 A.D.2d 333, 612 N.Y.S.2d 919; Vierya v. Briggs & Stratton Corp., 166 A.D.2d 645, 561 N.Y.S.2d 74), reversal is warranted where the court improvidently exercises its discretion (see, Roussodimou v. Zafiriadis, supra; Orlando v. Corning, Inc., 213 A.D.2d 464, 623 N.Y.S.2d 635). A "pattern of willful default and neglect" should not be excused (Gannon v. Johnson Scale Co., 189 A.D.2d 1052, 592 N.Y.S.2d 881).

The defendant repeatedly failed to comply with the court's discovery orders, and did not appear for an examination before trial until after the plaintiff moved to strike the answer. Thereafter, the defendant's attorney failed to appear in the Trial Assignment Part on the scheduled trial date, even after the Supreme Court adjourned the matter for a day and contacted the law firm representing the defendant. The defendant failed to adequately explain this pattern of willful neglect (see, Rock v. Schwartz, 244 A.D.2d 542, 664 N.Y.S.2d 614; Putney v. Pearlman, supra). Under these circumstances, the Supreme Court improvidently exercised its...