LUCIANO v. FELIX (2020)

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered April 8, 2019, which denied plaintiff's motion to vacate the prior orders and restore the matter pursuant to CPLR 5015 on the basis that she lacked a reasonable excuse for the default, unanimously affirmed, without costs.  Appeals from order, same court and Justice, entered May 1, 2018, which granted defendants' unopposed motion for summary judgment dismissing the complaint for lack of a causally related serious injury within the meaning of Insurance Law § 5102(d), and from order, same court and Justice, entered November 19, 2018, which denied plaintiff's motion for leave to renew and reargue, unanimously dismissed, without costs, as taken from nonappealable orders.

Since the order granting summary judgment dismissing the complaint was granted on default, the court properly denied plaintiff's motion to renew and reargue.  The proper remedy for plaintiff was to move to vacate the default pursuant to CPLR 5015 (Bank Leumi Trust Co. of N.Y. v. Sibthorpe, 161 A.D.2d 325, 555 N.Y.S.2d 90 [1st Dept. 1990];  Vasquez v. Koret, Inc., 151 A.D.2d 448, 543 N.Y.S.2d 907 [1st Dept. 1989] ), which plaintiff ultimately did.

However, Supreme Court providently exercised its discretion in denying plaintiff's motion pursuant to CPLR 5015.  Under the circumstances, plaintiff's claim that her failure to submit opposition to defendants' summary judgment motion was caused by law office failure is insufficient to establish a reasonable excuse for the default, because counsel offered no explanation as to why he believed a requested adjournment had been granted by the court and did not seek reargument until three months after the action was dismissed (see Perez v. New York City Hous. Auth., 47 A.D.3d 505, 505–506, 850 N.Y.S.2d 75 [1st Dept. 2008] ).  Furthermore, plaintiff's counsel failed to submit the proposed opposition to the motion, which included medical affirmations prepared months after the proposed adjourn date, with the motion to renew or reargue.

Given plaintiff's prolonged delay, the motion court did not abuse its discretion in finding that it need not decide the issue of whether her action has merit (see Agosto v. Western Beef Retail, Inc., 175 A.D.3d 1192, 1192–1193, 109 N.Y.S.3d 38 [1st Dept. 2019] ).  Because plaintiff failed to provide an acceptable excuse for the default, it is unnecessary for this Court to address whether she demonstrated a meritorious cause of action (see Fernandez v. Santos, 161 A.D.3d 473, 474, 76 N.Y.S.3d 147 [1st Dept. 2018] ).

If we were to review the serious injury threshold issue, we would find that defendants established their initial burden to show that plaintiff did not sustain a serious injury causally related to the minor accident (see Riollano v. Leavey, 173 A.D.3d 494, 495, 103 N.Y.S.3d 386 [1st Dept. 2019];  Moreira v. Mahabir, 158 A.D.3d 518, 518, 71 N.Y.S.3d 38 [1st Dept. 2018];  Rodriguez v. Konate, 161 A.D.3d 565, 566, 76 N.Y.S.3d 553 [1st Dept. 2018] ).  Plaintiff's proposed opposition does not contain medical evidence causally relating to the accident, other than the conclusory statement of one provider who relied on the history provided by plaintiff and did not address the evidence of degeneration in plaintiff's own MRI report (see e.g. Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 993 N.Y.S.2d 1 [1st Dept. 2014], affd 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015];  Williams v. Laura Livery Corp., 176 A.D.3d 557, 558, 112 N.Y.S.3d 16 [1st Dept. 2019] ).