Ju Eun Jang v. All Mobile Video, Inc.

132 A.D.3d 518, 17 N.Y.S.3d 852

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 2015
• Docket: 15901 116650/09
• Status: Published

Opinion

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered April 11, 2014, which denied plaintiffs’ motion to vacate a judgment, same court (Silver, J.), entered March 15, 2013, upon default, dismissing the complaint, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, the motion granted, and the complaint reinstated.

We disagree with the motion court as to the reasonableness of plaintiffs’ proffered excuse for failing to oppose defendants’ motion for summary judgment (see CPLR 5015 [a]; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 833 [1987] [this Court may substitute, its own discretion for that of supreme court]). Plaintiffs’ attorney affirmed that she only received the physician’s narrative report, without which she could not prepare opposition papers, until near the return date of the motion and that before that date she suffered a sudden illness and pain for which she had to be heavily sedated, and as a consequence she was unable to communicate with her office about seeking an adjournment (see Santiago v Valentin, 125 AD3d 459 [1st Dept 2015]; Imperato v Mount Sinai Med. Ctr., 82 AD3d 414 [1st Dept 2011], affd on other grounds 18 NY3d 871 [2012]).

Plaintiffs also provided affirmed medical experts’ reports demonstrating potentially meritorious claims of serious injury under Insurance Law § 5102 (d) (see Laracuente v Batia Realty Corp., 56 AD3d 294 [1st Dept 2008]).

Concur — Gonzalez, P.J., Mazzarelli, Richter and Manzanet-Daniels, JJ.