Opinion
No. 116834/05.
03-22-2016
Rebecca B. ELLINGTON, Plaintiff, v. DORMITORY AUTHORITY OF THE STATE OF NEW YORK, Consolidated Edison, Inc., Empire City Subway Company (Limited), Warren George, Inc., Mitchell Construction Corp., Green Isle Contracting of Bellerose, Inc., and D & S Restoration, Inc., Defendants.
Law Offices of Marie Ann Mar, Esq., New York (James M. Visser, Esq.), for plaintiff. Downing & Peck, P.C., New York (John M. Downing Jr. ), for defendant D & S Restoration, Inc. Law Office of James J. Toomey, New York (John C. Stataro), for defendant Warren George, Inc. Consolidated Edison, Inc., New York (Gail Richardson ), for defendant Consolidated Edison, Inc. Law Offices of Harris, King & Fodera, New York (Philip DeBernardis), for defendant Green Isle Contracting of Bellerose, Inc.
Law Offices of Marie Ann Mar, Esq., New York (James M. Visser, Esq.), for plaintiff.
Downing & Peck, P.C., New York (John M. Downing Jr. ), for defendant D & S Restoration, Inc.
Law Office of James J. Toomey, New York (John C. Stataro), for defendant Warren George, Inc.
Consolidated Edison, Inc., New York (Gail Richardson ), for defendant Consolidated Edison, Inc.
Law Offices of Harris, King & Fodera, New York (Philip DeBernardis), for defendant Green Isle Contracting of Bellerose, Inc.
GERALD LEBOVITS, J.
Recitation, as required by CPLR 2219(a), of the papers considered in reviewing plaintiff's motion to restore.
| Papers | Numbered |
|---|---|
| Plaintiff's Notice of Motion to Restore | 1 |
| Defendant–D & S Restoration, Inc.'s Affirmation in Opposition | 2 |
| Plaintiff's Reply to Defendant D & S | 3 |
| Defendant–Warren George Inc.'s Affirmation in Opposition | 4 |
| Plaintiff's Reply to Defendant Warren George | 5 |
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DECISION/ORDER
Upon the foregoing papers, it is ordered that plaintiff's CPLR 5015(a)(1) motion to restore the complaint to the non-trial calendar is granted.
After plaintiff's counsel failed to appear at a scheduled compliance conference on October 8, 2014, Justice Paul Wooten dismissed the matter, noting the default on the record, pursuant to 22 NYCRR 202.27.
By notice dated October 3, 2015, plaintiff now moves under CPLR 5015(a)(1) to restore the complaint to the non-trial calendar. Plaintiff's motion is timely because it was filed within one year after the October 8, 2014 entry of default against her.
Defendants Dormitory Authority of the State of New York and Empire City Subway Company (Limited) both prevailed on their respective motions for summary judgment. (Plaintiff's Notice of Motion, at ¶ 49.) Justice Michael D. Stallman entered a judgment of default against defendant Mitchell Construction Corp. in March 2009. (Plaintiff's Notice of Motion, Exhibit 10.) Two of the remaining four defendants, D & S Restoration, Inc. (“D & S”) and Warren George, Inc. (“Warren George”), submitted affirmations in opposition to the current motion, arguing that the proffered excuse for the default was inadequate and that plaintiff has failed to establish a meritorious cause of action.
Where plaintiff fails to appear at a scheduled calendar call or status conference, Supreme Court may note the default on the record and enter an order dismissing the complaint. (22 NYCRR 202.27.) To obtain relief from a section 202.27 default, the defaulting party may move under CPLR 5015(a)(1) to restore the complaint, upon a showing of “excusable default” and a meritorious cause of action. (Grant v. Rattoballi, 57 AD3d 272, 272 [1st Dept 2008].) For purposes of CPLR 5015(a)(1) law office failure may constitute an excusable default. (CPLR 2005.)
Plaintiff's counsel alleged that his failure to appear at the October 8 compliance conference was inadvertent and due to his law office's having marked the conference for another date when transferring his schedule to a new calendar. (Plaintiff's Notice of Motion, at ¶ 14.) Counsel further stated that he learned of the default only on October 14, 2014, when he contacted defendant D & S to schedule an EBT. (Plaintiff's Notice of Motion, at ¶ 13.) Defendants argue that plaintiff's excuse of law-office failure is contradictory and should therefore be ignored. (Defendant's (D & S) Affirmation in Opposition, at ¶ 4; Defendant's (Warren George) Affirmation in Opposition, at ¶ 8, 9.)
In determining whether the law-office failure constitutes an excusable default, it is squarely within the court's discretion to decide whether the proffered excuse is reasonable under the circumstances. (Mediavilla v. Gurman, 272 A.D.2d 146, 148 [1st Dept 2000] [attorney's excuse of law office failure, though “short on detail,” did not preclude a finding that the default was excusable].) Moreover, in cases where the parties are “busily engaged” in activity in the case prior to the default (Telep v. Republic Elevator Corp., 267 A.D.2d 57, 58 [1st Dept 1999] ) or where the missed appearance was a singular or inadvertent mistake, the default will ordinarily be excused. (See Campos v. New York City Health & Hosps. Corp., 307 A.D.2d 785, 785 [1st Dept 2003].)
The parties made numerous appearances in the case between June 16, 2006 and the October 8 default (Plaintiff's Notice of Motion, Exhibit 20), including the scheduling of a court ordered EBT with defendant D & S only a week before the default. (Plaintiff's Notice of Motion, Exhibit 22.) Under the circumstances of this case, plaintiff's law-office failure with respect to the October 8 conference constituted an excusable default.
It is also in the court's discretion to determine whether plaintiff has stated a meritorious cause of action. (Mediavilla, 272 A.D.2d at 148.) The evidentiary showing required on this CPLR 5015(a)(1) motion to restore is less stringent than on motion for summary judgment (Levy v. New York City Hous. Auth., 287 A.D.2d 281, 281 [1st Dept 2001] ), and factual assertions in pleadings can establish the merits of claim. (Reices v. Catholic Med. Ctr. of Brooklyn & Queens, 306 A.D.2d 394, 394 [1st Dept 2003].)
Plaintiff served an amended verified complaint dated February 26, 2008, alleging that she sustained personal injuries as the result of defendants' negligent maintenance and/or repair of a portion of sidewalk on the south side of East 68th Street, abutting the Hunter College West Building. (Plaintiff's Notice of Motion, Exhibit 2, at ¶ 48.) The thrust of plaintiff's claim with respect to the remaining defendants is that defendants each contracted to maintain or repair the subject sidewalk at some point before plaintiff's trip-and-fall. It is further alleged that in performing said work defendants violated various State and City permit laws and negligently “fail[ed] to make the expansion joint flush with the finished surface,” causing a portion of the sidewalk to be significantly elevated at its seam, constituting a tripping hazard. (Plaintiff's Notice of Motion, Exhibit 1, at pp. 13–14.) The instant motion was accompanied by plaintiff's affidavit of merit as well as medical records from New York Presbyterian Hospital and the Hospital for Special Surgery, where plaintiff was treated for a fracture, among other injuries. (Plaintiff's Notice of Motion, Exhibits 26, 27 .)
Plaintiff's Verified Amended Complaint, together with her affidavit of merit and medical records, set forth sufficient facts to show the existence of a meritorious cause of action.
Plaintiff's motion is granted for the reasons set forth above and in consideration of the “strong public policy of this State that matters be decided on their merits.” (Mediavilla, 272 A.D.2d at 148.)
ORDERED that plaintiff's motion to restore the complaint to the non-trial calendar is granted.
ORDERED that plaintiff shall serve a copy of this order with notice of entry upon the General Clerk's office, room 119;
ORDERED that the General Clerk's office is directed to restore this matter to the active calendar;
ORDERED that the parties appear for a status conference on April 27, 2016, at 10:00 a.m., in Part 7, at 111 Centre Street, room 731.
This is the court's decision and order.