State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 12, 2017 522779
________________________________
SHAKIMA HILL, as Administrator
of the Estate of JAMES
McCRAE, Deceased,
Respondent,
v
MEMORANDUM AND ORDER
NATOWI McCRAE et al.,
Appellants,
and
ANDREW J. O'BRIEN,
Respondent.
________________________________
Calendar Date: November 15, 2016
Before: Garry, J.P., Egan Jr., Devine, Clark and Mulvey, JJ.
__________
Law Office of Jaime E. Gangemi, New York City (William S.
Badura of Kornfeld, Rew, Newman & Simeone, Suffern, of counsel),
for appellants.
LaFave, Wein & Frament, PLLC, Guilderland (Paul H. Wein of
counsel), for Shakima Hill, respondent.
Goldberg Segalla, Albany (Latha Raghavan of counsel), for
Andrew J. O'Brien, respondent.
__________
Clark, J.
Appeal from an order of the Supreme Court (Zwack, J.),
entered June 11, 2015 in Albany County, which denied a motion by
defendants Natowi McCrae and Jose A. Gonzalez to vacate default
judgments entered against them.
-2- 522779
On January 15, 2008, James McCrae (hereinafter decedent)
was a passenger in a vehicle operated by defendant Natowi McCrae
(hereinafter McCrae) and purportedly owned by defendant Jose A.
Gonzalez. As the vehicle was traveling eastbound on Jefferson
Street in the City of Albany and through the intersection with
Dove Street, it collided with another vehicle – operated by
defendant Andrew J. O'Brien – traveling southbound on Dove
Street. Decedent sustained an injury to his left ankle during
the collision and, in November 2010, he commenced this personal
injury action against defendants.1 McCrae and Gonzalez joined
issue and asserted cross claims against O'Brien for contribution
and common-law indemnification, and O'Brien joined issue,
asserting cross claims against McCrae and Gonzalez for similar
relief.
On October 23, 2014, the parties appeared for a conference
before Supreme Court to discuss outstanding discovery issues. At
that conference, Supreme Court ordered that McCrae's deposition
be held on or before December 5, 2014 and scheduled a compliance
conference for January 29, 2015. McCrae ultimately was not
deposed and when neither McCrae nor Gonzalez or their counsel
appeared for the January 2015 compliance conference, both
plaintiff and O'Brien orally moved for default judgments pursuant
to 22 NYCRR 202.27. In a judgment dated February 5, 2015,
Supreme Court granted plaintiff's motion in all respects and
directed that the matter be scheduled for an inquest upon the
filing of a note of issue. In a separate judgment dated February
6, 2015, Supreme Court, among other things, dismissed the cross
claims against O'Brien and entered a default judgment in his
favor on his cross claims. Supreme Court denied the subsequent
motion of McCrae and Gonzalez seeking to vacate the judgments,
thereby prompting this appeal.
As an initial matter, McCrae and Gonzalez assert that this
action remains "in a procedural quagmire" because the judgment
dated February 5, 2015 indicated that plaintiff moved for an
1
During the pendency of this action, decedent died and
plaintiff, his daughter, was appointed administrator of his
estate and duly substituted as plaintiff in the action.
-3- 522779
order striking McCrae's answer and entered a default judgment
against McCrae, but not Gonzalez. However, it is clear from the
record that Supreme Court's error in this regard was inadvertent
and that it intended to strike the answer of McCrae and Gonzalez
in its entirety and grant plaintiff a default judgment against
both of them. Moreover, in their motion to vacate, McCrae and
Gonzalez proceeded as though the default judgment entered in
favor of plaintiff applied equally to them both. Accordingly, as
correction of the error would not affect a substantial right of
any of the parties, we direct Supreme Court to cure the mistake
(see CPLR 5019 [a]; Federal Deposit Ins. Corp. v J & D Einbinder
Assoc., 224 AD2d 655, 656 [1996]).
Turning to the merits, a defendant seeking to vacate an
order entered pursuant to 22 NYCRR 202.27 must demonstrate both a
reasonable excuse for the default and a potentially meritorious
defense or cross claim (see CPLR 5015 [a]; Hayes v Village of
Middleburgh, 140 AD3d 1359, 1361 [2016]; Foley Inc. v Metropolis
Superstructures, Inc., 130 AD3d 680, 680 [2015]; Acevedo v
Navarro, 22 AD3d 391, 392 [2005]). Here, the excuse of law
office failure proffered by McCrae and Gonzalez was not a
reasonable excuse for their nonappearance at the January 2015
compliance conference, particularly given that their counsel had
a history of ignoring communications from the opposing parties
and, at the time of the compliance conference, McCrae had yet to
be deposed, despite Supreme Court's order that such deposition be
completed on or before December 5, 2014 (see Imovegreen, LLC v
Frantic, LLC, 139 AD3d 539, 539-540 [2016]; Bank of N.Y. v
Mohammed, 130 AD3d 1419, 1420 [2015]; Campos v New York City
Health & Hosps. Corp., 307 AD2d 785, 786 [2003]). In the absence
of a reasonable excuse, we need not reach the question of whether
McCrae and Gonzalez demonstrated a meritorious defense or cross
claim (see US Bank N.A. v Thurm, 140 AD3d 1578, 1579 [2016];
Cotter v Dukharan, 110 AD3d 1331, 1333 [2013]; Kranenburg v
Butwell, 34 AD3d 1005, 1006 [2006]). Thus, as we discern no
abuse of discretion on the part of Supreme Court, we decline to
disturb its denial of McCrae and Gonzalez's motion to vacate (see
GMAC Mtge., LLC v Guccione, 127 AD3d 1136, 1138 [2015]).
Garry, J.P., Egan Jr., Devine and Mulvey, JJ., concur.
-4- 522779
ORDERED that the order is affirmed, with one bill of costs,
and Supreme Court is directed to cure the defects in the judgment
dated February 5, 2015.
ENTER:
Robert D. Mayberger
Clerk of the Court