GU v. LEI (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for malicious prosecution, the plaintiff Feifei Gu appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated March 20, 2024.  The order denied the motion of the plaintiff Feifei Gu, among other things, in effect, pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated September 6, 2023, inter alia, granting the defendants' cross-motion pursuant to CPLR 3126(3) to strike the complaint upon the plaintiffs' failure to appear on the return date of that cross-motion.

ORDERED that the order dated March 20, 2024, is affirmed, with costs.

“A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense” (U.S. Bank Trust, N.A. v. Aulder, 219 A.D.3d 666, 667, 195 N.Y.S.3d 58 [internal quotation marks omitted];  see CPLR 5015[a][1];  Bank of Am., N.A. v. Russell, 197 A.D.3d 448, 448, 148 N.Y.S.3d 719).  “The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion” (U.S. Bank Trust, N.A. v. Aulder, 219 A.D.3d at 667, 195 N.Y.S.3d 58;  see Wade v. Cojab, 219 A.D.3d 668, 669, 194 N.Y.S.3d 536).

Here, the Supreme Court providently exercised its discretion in rejecting the proffered excuse of the plaintiff Feifei Gu for failing to appear on the return date of the plaintiffs' motion, inter alia, to compel certain discovery and the defendants' cross-motion pursuant to CPLR 3126(3) to strike the complaint (see Wade v. Cojab, 219 A.D.3d at 669, 194 N.Y.S.3d 536;  Bank of Am., N.A. v. Russell, 197 A.D.3d at 448, 148 N.Y.S.3d 719;  Thomas v. Avalon Gardens Rehabilitation & Health Care Ctr., 107 A.D.3d 694, 695, 966 N.Y.S.2d 505).  Because Feifei Gu failed to demonstrate a reasonable excuse for failing to appear on the return date, it is unnecessary to determine whether she demonstrated a potentially meritorious opposition to the cross-motion (see U.S. Bank Trust, N.A. v. Aulder, 219 A.D.3d at 667–668, 195 N.Y.S.3d 58).

In any event, even assuming, arguendo, that there was a reasonable excuse for Feifei Gu's default in appearing on the return date, Feifei Gu failed to establish a potentially meritorious opposition to the defendants' cross-motion pursuant to CPLR 3126(3) to strike the complaint (see Wade v. Cojab, 219 A.D.3d at 669–670, 194 N.Y.S.3d 536;  Thomas v. Avalon Gardens Rehabilitation & Health Care Ctr., 107 A.D.3d at 695, 966 N.Y.S.2d 505).

In light of the foregoing, we need not reach Feifei Gu's remaining contention.

Accordingly, the Supreme Court correctly denied Feifei Gu's motion, among other things, in effect, pursuant to CPLR 5015(a)(1) to vacate an order dated September 6, 2023, inter alia, granting the defendants' cross-motion pursuant to CPLR 3126(3) to strike the complaint.

IANNACCI, J.P., CHAMBERS, TAYLOR and MCCORMACK, JJ., concur.