| Narvaez v City of New York |
| 2019 NY Slip Op 02528 |
| Decided on April 3, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on April 3, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
COLLEEN D. DUFFY
FRANCESCA E. CONNOLLY
LINDA CHRISTOPHER, JJ.
2017-09303
2018-01617
(Index No. 712691/15)
v
City of New York, respondent.
Scott Baron & Associates, P.C., Howard Beach, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Jane L. Gordon and Ellen Ravitch of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated June 12, 2017, and (2) an order of the same court dated November 13, 2017. The order dated June 12, 2017, granted the defendant's unopposed motion for summary judgment dismissing the complaint. The order dated November 13, 2017, denied the plaintiff's motion pursuant to CPLR 5015(a) to vacate the order dated June 12, 2017.
ORDERED that the appeal from the order dated June 12, 2017, is dismissed; and it is further,
ORDERED that the order dated November 13, 2017, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The plaintiff commenced this action against the City of New York to recover damages for personal injuries she allegedly sustained when she fell after stepping in a hole in the street in Queens. In an order dated June 12, 2017, the Supreme Court granted the City's unopposed motion for summary judgment dismissing the complaint. In an order dated November 13, 2017, the Supreme Court denied the plaintiff's motion pursuant to CPLR 5015(a) to vacate the order dated June 12, 2017. The plaintiff appeals.
The plaintiff's appeal from the order dated June 12, 2017, must be dismissed, as no appeal lies from an order or judgment entered upon the default of the appealing party (see CPLR 5511; Wells Fargo Bank, N.A. v Syed, 160 AD3d 914, 914; Adotey v British Airways, PLC, 145 AD3d 748, 749).
We agree with the Supreme Court's denial of the plaintiff's motion pursuant to CPLR 5015(a) to vacate the order dated June 12, 2017. A party seeking to vacate an order entered upon his or her failure to oppose a motion is required to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion (see Paul v [*2]Weatherwax, 146 AD3d 792, 793; Lyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614, 614).
Here, the plaintiff's attorney established a reasonable excuse for the untimely submission of the plaintiff's opposition to the City's motion for summary judgment (see Young Su Hwangbo v Nastro, 153 AD3d 963, 965). The opposition papers were submitted only six days after the adjourned date set by the court for the filing of opposition papers, and eight days prior to the return date of the motion. The plaintiff's attorney established that the late filing was not willful and there was no prejudice to the City (see Toll Bros., Inc. v Dorsch, 91 AD3d 755, 756).
However, the plaintiff failed to raise a potentially meritorious opposition to the City's motion. Specifically, the plaintiff failed to raise a triable issue of fact as to whether the City had prior written notice of the alleged defect in the street (see Yarborough v City of New York, 10 NY3d 726, 728; Oboler v City of New York, 8 NY3d 888, 890; Wald v City of New York, 115 AD3d 939, 941; Daniels v City of New York, 29 AD3d 514, 515). Accordingly, the plaintiff was not entitled to vacatur of the order dated June 12, 2017.
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court