Rapo v. Litvinoff

72 Misc. 3d 138(A), 2021 NY Slip Op 50769(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 30, 2021
• Docket: 2019-1608 Q C
• Status: Unpublished

Opinion

Rapo v Litvinoff (2021 NY Slip Op 50769(U)) [*1]

Rapo v Litvinoff

2021 NY Slip Op 50769(U) [72 Misc 3d 138(A)]

Decided on July 30, 2021

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 30, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ
2019-1608 Q C

Adelina Rapo, Appellant, Arben Rapo, Plaintiff,

against

Svetlana Litvinoff and Artur Litvinoff, Respondents.

Sacco & Fillas, LLP (Albert R. Matuza, Jr. of counsel), for appellant. Patterson & Sciarrino, LLP (Jerome D. Patterson of counsel), for respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maurice E. Muir, J.), entered December 12, 2018. The order, insofar as appealed from, denied a motion by plaintiff Adelina Rapo to vacate so much of an order of that court (Donna Marie Golia, J.) entered February 26, 2018 as dismissed, upon plaintiffs' failure to appear for a summary jury trial, so much of the complaint as was asserted by her.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiffs commenced this action in Supreme Court, Queens County, in July 2009, as a result of a motor vehicle accident which occurred on January 21, 2009. Insofar as relevant to this appeal, Adelina Rapo (plaintiff) sought to recover for personal injuries she suffered in the accident. Over the next nine years, the action was transferred to the Civil Court, Queens County, pursuant to CPLR 325 (d), scheduled for trial and marked off the calendar. Following a series of motions, plaintiff retained new counsel. On January 12, 2018, the court conducted an evidentiary hearing and a summary jury trial was set for January 18, 2018. The matter was then adjourned to January 22, 2018 and again to February 26, 2018. When neither plaintiff nor counsel appeared on February 26, 2018, the Civil Court (Donna Marie Golia, J.) dismissed the action. On or about March 9, 2018, defendants served a notice of entry of the order.

Insofar as is relevant to this appeal, plaintiff moved five months later to vacate so much of the February 26, 2018 order as dismissed so much of the complaint as was asserted by her. In his affirmation in support, plaintiff's counsel stated that plaintiff did not intend to abandon this action, that discovery was complete and that defendants would not be prejudiced by the granting of the motion. Counsel argued that an attorney in his firm who "covered the appearance on January 22, 2018 inadvertently failed to diary the date, February 26, 2018, in our case management and calendaring system" for the trial date. Counsel also submitted an affidavit by [*2]the firm's calendar clerk, Charisse Anderson, who averred that her records showed that there was an entry that the case did not go forward on January 22, 2018, but that there was no new date entered. Counsel further stated that a meritorious cause of action was demonstrated by the deposition transcript of plaintiff and the affirmed medical report of her doctor, which described a herniation in the lumbar area of plaintiff's spine that was caused by the accident. Counsel also noted that the Supreme Court, Queens County (Bernice D. Siegal, J.), issued an order dated February 9, 2012 denying a motion for summary judgment which sought to dismiss the relevant causes of action on the ground that plaintiff had not sustained a serious injury as defined in Insurance Law § 5102 (d).

In an order entered December 12, 2018, insofar as appealed from, the Civil Court (Maurice E. Muir, J.) denied plaintiff's motion, stating that plaintiff had failed to provide a reasonable excuse for the default in appearing.

It was incumbent upon plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Plaintiff failed to sustain this burden.

The sole explanation offered by plaintiff for her default is that her counsel's office failed to calendar the adjourned trial date. While law office failure may constitute a basis to vacate an order entered upon a default in appearing (see CPLR 2005), here, the moving papers failed to provide an affidavit by the attorney who had appeared in court on January 22, 2018 and who had allegedly failed to have the adjourned date entered into the law firm's computer system. Indeed, the moving papers failed to even provide that attorney's name. Rather, the law firm's computer entry was simply that the matter did not go forward on January 22, 2018. Such conclusory allegations are insufficient to constitute a showing of law office failure sufficient to demonstrate a reasonable excuse for the default (see Juarbe v City of New York, 303 AD2d 462 [2003]; V.S. Med Servs. P.C. v Travelers Ins. Co., 24 Misc 3d 32 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, plaintiff's motion was properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 30, 2021