BEY v. CITY OF NEW YORK (2024)

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about August 8, 2023, which denied plaintiff's motion to vacate a default judgment dismissing the complaint against defendant City of New York, unanimously affirmed, without costs.

The court providently exercised its discretion in denying plaintiff's motion to vacate, because, notwithstanding plaintiff's showing of merit, he failed to demonstrate a reasonable excuse for failing to oppose the City's motion to dismiss (see CPLR 5015[a][1];  see also Imovegreen, LLC v. Frantic, LLC, 139 A.D.3d 539, 540, 32 N.Y.S.3d 103 [1st Dept. 2016]).  While plaintiff's counsel adequately explained the failure to respond to the hard copy of the City's motion, counsel failed to explain why he did not e-file a notice of appearance (thereby ensuring he would have received notice of the motion to dismiss via the court's e-filing system) until November 2021, well after he informed the City of his representation of plaintiff.  This occurred after he received plaintiff's file, which he suggested he needed to properly address this case (see Imovegreen, LLC, 139 A.D.3d at 540, 32 N.Y.S.3d 103).

Moreover, the court properly found that counsel's failure to respond to the City's motion was part of a larger pattern of neglect (see id.;  see also Spivey v. City of New York, 167 A.D.3d 487, 87 N.Y.S.3d 890 [1st Dept. 2018], lv dismissed 35 N.Y.3d 936, 124 N.Y.S.3d 322, 147 N.E.3d 592 [2020]).  For example, plaintiff has not explained why his second and third counsel did not fully comply with a September 3, 2020 discovery order until March 2023, when current counsel filed his motion to vacate (see Myzak v. Rosania, 227 A.D.3d 548, 549, 209 N.Y.S.3d 421 [1st Dept. 2024]).  Plaintiff also has not explained why, after his current counsel learned of the March 2022 order of dismissal and failed to reach plaintiff by phone, counsel did not notify plaintiff of the order by mail or seek to vacate the default until almost a year after notice of entry of the order (see Youni Gems Corp. v. Bassco Creations Inc., 70 A.D.3d 454, 455, 896 N.Y.S.2d 315 [1st Dept. 2010], lv dismissed 15 N.Y.3d 863, 909 N.Y.S.2d 693, 936 N.E.2d 460 [2010];  Pichardo–Garcia v. Josephine's Spa Corp., 91 A.D.3d 413, 414, 936 N.Y.S.2d 27 [1st Dept. 2012]).