FERERE v. SAKS FIFTH AVENUE LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), entered March 27, 2024.  The order denied the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Robert J. McDonald, J.) dated July 7, 2022, inter alia, in effect, granting that branch of the unopposed motion of the defendants Gilbane, Inc., and Gilbane Building Company which was to compel the plaintiff to comply with discovery demands, and an order of the same court (Robert J. McDonald, J.) dated December 8, 2022, among other things, granting those branches of the separate unopposed motions of the defendants Gilbane, Inc., and Gilbane Building Company and the defendant Saks Fifth Avenue, LLC, which were pursuant to CPLR 3126(3) to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order entered March 27, 2024, is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

In August 2018, the plaintiff commenced this action, alleging that she was injured when she slipped and fell due to the defendants' negligence.  In June 2022, the defendants Gilbane, Inc., and Gilbane Building Company (hereinafter together the Gilbane defendants) moved, inter alia, to strike the note of issue and to compel the plaintiff to comply with prior court orders and discovery demands.  The plaintiff failed to oppose the motion.  In an order dated July 7, 2022 (hereinafter the July 2022 order), the Supreme Court, among other things, in effect, granted that branch of the unopposed motion which was to compel the plaintiff to comply with discovery demands by directing the plaintiff to provide a response to the Gilbane defendants' notice for discovery and inspection dated June 11, 2019, supplemental notice for discovery and inspection dated June 13, 2019, and post-deposition demands dated June 13, 2019, on or before August 12, 2022.  The plaintiff failed to comply with the July 2022 order.

On October 25, 2022, the Gilbane defendants moved, inter alia, pursuant to CPLR 3126(3) to dismiss the complaint insofar as asserted against them for the plaintiff's failure to comply with prior court orders and discovery demands and notices.  On October 27, 2022, the defendant Saks Fifth Avenue, LLC, separately moved, among other things, pursuant to CPLR 3126(3) to dismiss the complaint insofar as asserted against it for the plaintiff's failure to comply with prior discovery demands and court orders.  The plaintiff did not oppose either motion.  In an order dated December 8, 2022 (hereinafter the December 2022 order), the Supreme Court, inter alia, granted those branches of the separate motions.  The court stated that the plaintiff had failed to provide responses to the outstanding demands, did not oppose the defendants' separate motions, and had failed to provide any excuse for failing to comply with court-ordered discovery.

On August 4, 2023, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the July 2022 order and the December 2022 order.  In an order entered March 27, 2024, the Supreme Court denied the motion.  The plaintiff appeals.

“ ‘A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion’ ” (Tulloch v. Barka, 249 AD3d 1213, 1214, quoting Logan v. 250 Pac., LLP, 210 AD3d 1064, 1066;  see CPLR 5015[a][1];  U.S. Bank Trust, N.A. v. Aulder, 219 AD3d 666, 667).  “ ‘While CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse’ ” (Wilmington Sav. Fund Socy., FSB v Rodriguez, 197 AD3d 784, 786, quoting Maruf v. E.B. Mgt. Props., LLC, 181 AD3d 670, 671–672).  “[A] conclusory, undetailed and uncorroborated claim of law office failure does not amount to a reasonable excuse” (GITSIT Solutions, LLC v. Azcuy, 242 AD3d 956, 958 [internal quotation marks omitted];  see Zlobec v. Bank of N.Y. Mellon, 241 AD3d 606, 609).

Here, the Supreme Court providently exercised its discretion in determining that the plaintiff's claim of law office failure did not constitute a reasonable excuse for her default.  The plaintiff's conclusory and unsubstantiated assertions that the attorney assigned to the case “inexplicably” failed to take required actions with regard to the case were insufficient to establish a reasonable excuse for the defaults (see Wilmington Sav. Fund Socy., FSB v Rodriguez, 197 AD3d at 786;  Pei Qi Chen v. Chen, 186 AD3d 723, 724;  Carillon Nursing & Rehabilitation Ctr., LLP v Fox, 118 AD3d 933, 934).  It is apparent that the plaintiff's law firm and its principal received notice of the actions taken, yet the firm took no action in response.  Since the plaintiff failed to establish a reasonable excuse for her defaults, it is unnecessary to determine whether she sufficiently demonstrated the existence of a potentially meritorious opposition to the motions (see Clark v. Romeo, 239 AD3d 822, 823;  Xiaomeng Yang v. Amirshoev, 208 AD3d 1386, 1388–1389).

The plaintiff's remaining contention need not be reached in light of our determination.

BARROS, J.P., GENOVESI, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.