Yoon v. Lam

222 A.D.3d 959

202 N.Y.S.3d 423

Kyung Aye YOON, et al., appellants, et al., plaintiff,

v.Haktung LAM, et al., respondents.

2020–07811

Index No. 710275/15

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

Submitted—September 29, 2023

December 27, 2023

Andrew Park, P.C., New York, NY (Justin Yook of counsel), for appellant Jongseon Kim.

Goldberg, Miller & Rubin, P.C., New York, NY (Aran J. O'Gara of counsel), for respondents.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff Jongseon Kim appeals, and the plaintiff Kyung Aye Yoon separately appeals, from an order of the Supreme Court, Queens County (Lourdes M. Ventura, J.), entered October 13, 2020. The order, insofar as appealed from by the plaintiff Jongseon Kim, denied the motion of that plaintiff, inter alia, pursuant to CPLR 5015(a) to vacate her default in opposing that branch of the defendants’ prior motion which was for summary judgment dismissing the complaint insofar as asserted by that plaintiff on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident and to vacate so much of an order of the same court (Salvatore Modica, J.) dated April 22, 2019, as granted that branch of the defendants’ prior motion. The appeal by the plaintiff Kyung Aye Yoon was deemed dismissed pursuant to 22 NYCRR 1250.10(a).

ORDERED that the order entered October 13, 2020, is affirmed insofar as appealed from by the plaintiff Jongseon Kim, with one bill of costs payable by that plaintiff.

The plaintiff Jongseon Kim (hereinafter the plaintiff), and others, commenced this action to recover damages for personal injuries that they allegedly sustained in a motor vehicle accident. The defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted by the plaintiff on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order dated April 22, 2019, the Supreme Court granted the defendants’ motion, which was unopposed.

The plaintiff thereafter moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate her default in opposing the defendants’ motion and to vacate so much of the order dated April 22, 2019, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. In an order entered October 13, 2020, the Supreme Court denied the plaintiff's 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" ( Logan v. 250 Pac., LLC, 210 A.D.3d 1064, 1066, 180 N.Y.S.3d 184, citing CPLR 5015[a] ). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court" ( Logan v. 250 Pac., LLC, 210 A.D.3d at 1066, 180 N.Y.S.3d 184 ). "In making such a determination, the court may excuse delay or default resulting from law office failure" ( id. ). "[L]aw office failure should not be excused where a default results not from an isolated, inadvertent mistake, but from repeated neglect, or where allegations of law office failure are vague, conclusory, and unsubstantiated" ( Beach 28 RE, LLC v. Somra, 216 A.D.3d 610, 612, 188 N.Y.S.3d 598 [internal quotation marks omitted]). "[M]ere neglect is not a reasonable excuse" ( Melamed v. Adams & Co. Real Estate, LLC, 208 A.D.3d 867, 869, 174 N.Y.S.3d 713 [internal quotation marks omitted]).

Here, the plaintiff's submissions in support of her motion, including, among other things, the affirmation of her attorney and her treating physician, failed to set forth a detailed and credible explanation for the plaintiff ‘s...