Chowdhury v. Weldon

185 A.D.3d 649

124 N.Y.S.3d 863 (Mem)

Arpan K. CHOWDHURY, Appellant,

v.Joseph C. WELDON, Respondent.

2019–00408

Index No. 710004/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 3, 2020

July 8, 2020

Timothy Bompart, Inc., Rego Park, NY, for appellant.

Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Kevin G. Faley of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered November 28, 2018. The order denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court entered September 14, 2017, granting the defendant's unopposed motion to dismiss the complaint.

ORDERED that the order entered November 28, 2018, is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident. The defendant moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. In an order entered September 14, 2017, the Supreme Court granted the defendant's unopposed motion to dismiss the complaint.

Nearly one year later, the plaintiff moved, in effect, pursuant to CPLR 5015(a)(1) to vacate the order entered September 14, 2017, granting the defendant's motion to dismiss the complaint. In an order entered November 28, 2018, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.

A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Finamore v. David Ullman, P.C., 179 A.D.3d 642, 643, 116 N.Y.S.3d 357 ; Ki Tae Kim v. Bishop, 156 A.D.3d 776, 777, 67 N.Y.S.3d 655 ; Flagstar Bank, FSB v. Damaro, 145 A.D.3d 858, 859–860, 44 N.Y.S.3d 128 ; Credit Bur. of N.Y., Inc. v. Rapid Realty 95, Inc., 137 A.D.3d 841, 25 N.Y.S.3d 903 ). "The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion, and the court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005 ) where that claim is supported by a detailed and credible explanation of the default at issue" ( Ki Tae Kim v. Bishop, 156 A.D.3d at 777, 67 N.Y.S.3d 655 ). At the same time, "mere neglect is not a reasonable excuse" ( OneWest Bank, FSB v. Singer, 153 A.D.3d 714, 716, 59 N.Y.S.3d 480 ).

Here, the plaintiff failed to demonstrate a reasonable excuse for his default. The plaintiff's counsel asserted by affirmation in support of the motion that the default was the result of a paralegal leaving the practice and problems with the office's computer system. These conclusory and unsubstantiated allegations of law office failure did not constitute a reasonable excuse for the default (see Ki Tae Kim v. Bishop, 156 A.D.3d at 777, 67 N.Y.S.3d 655 ; OneWest Bank, FSB v. Singer, 153 A.D.3d at 716, 59 N.Y.S.3d 480 ; Aurora Loan Servs., LLC v. Lucero, 131 A.D.3d 496, 497, 14 N.Y.S.3d 707 ; Campbell–Jarvis v. Alves, 68 A.D.3d 701, 702, 889 N.Y.S.2d 257 ). Moreover, the record demonstrates that the initial default was not isolated error, but part of a pattern of "repeated neglect" ( Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66 ; see Zovko v. Quittner Realty, LLC, 162 A.D.3d 1102, 1104, 80 N.Y.S.3d 112 ). In this regard, the plaintiff failed to provide any excuse for his delay of almost one year before moving to vacate the default (see Zovko v. Quittner Realty, LLC, 162 A.D.3d at 1104, 80 N.Y.S.3d 112 ; Ki Tae Kim v. Bishop, 156 A.D.3d at 777, 67 N.Y.S.3d 655 ; Wells Fargo Bank, N.A. v. Krauss, 128 A.D.3d 813, 815, 10...