CURRY v. NORTHWELL HEALTH IMAGING AT SYOSSET (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lisa A. Cairo, J.), dated September 24, 2024.  The order, insofar as appealed from, denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate his default in appearing at a compliance conference on May 23, 2024, and to restore the action to the court's calendar.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries, alleging, among other things, negligence.  The plaintiff repeatedly failed to comply with orders to appear for his deposition, including a failure to appear on May 21, 2024.  On May 23, 2024, the plaintiff and his attorney failed to appear at a compliance conference and the Supreme Court directed dismissal of the action pursuant to 22 NYCRR 202.27.  In June 2024, the plaintiff moved, in effect, pursuant to CPLR 5015(a)(1) to vacate his default in appearing at the compliance conference and to restore the action to the court's calendar.  In support of his motion, the plaintiff argued that he had both a reasonable excuse for his default in appearing at the compliance conference and a potentially meritorious cause of action.  By order dated September 24, 2024, the court, inter alia, denied the plaintiff's motion, determining that he failed to offer a reasonable excuse for his default.  The plaintiff appeals.

“ ‘In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action’ ” (Gutierrez v. Plonski, 219 A.D.3d 807, 808, 195 N.Y.S.3d 251, quoting Lee v. Latendorf, 162 A.D.3d 1002, 1003, 80 N.Y.S.3d 447).  “ ‘Whether an excuse is reasonable is a determination within the sound discretion of the Supreme Court’ ” (id., quoting Polsky v. Simon, 145 A.D.3d 693, 693, 43 N.Y.S.3d 101).  “In its exercise of discretion, the court may consider factors such as ‘the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits' ” (id., quoting Crevecoeur v. Mattam, 172 A.D.3d 813, 814, 101 N.Y.S.3d 162).  “A court may, in the exercise of its discretion, accept law office failure as a reasonable excuse.  However, the party seeking to vacate the default must provide detailed allegations of fact that explain the failure, and a pattern of willful default and neglect should not be excused” (Davis v. 574 Lafa Corp., 206 A.D.3d 613, 615, 170 N.Y.S.3d 126 [citations and internal quotation marks omitted] ).  “[A] conclusory, undetailed, and uncorroborated claim of law office failure [does] not amount to a reasonable excuse” (Matter of Castellotti v. Castellotti, 165 A.D.3d 926, 928, 86 N.Y.S.3d 120).

Here, the Supreme Court providently exercised its discretion in determining that the plaintiff did not offer a reasonable excuse for his default.  The excuse proffered, that the plaintiff and his attorney failed to appear at the compliance conference due to the plaintiff's attorney's family emergency, was unreasonable under the circumstances, as it was not a detailed and credible explanation for the claimed law office failure.  Moreover, the plaintiff failed to set forth any excuse, let alone a reasonable one, for his failure to appear at his scheduled depositions.

Since the plaintiff failed to offer a reasonable excuse for his default, the issue of whether the plaintiff had a potentially meritorious cause of action need not be addressed (see Gutierrez v. Plonski, 219 A.D.3d at 809, 195 N.Y.S.3d 251).

The plaintiff's remaining contention is not properly before this Court.

Accordingly, the Supreme Court properly denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate his default in appearing at the compliance conference and to restore the action to the court's calendar.

DILLON, J.P., IANNACCI, DOWLING and MCCORMACK, JJ., concur.