Blazo v. Wyckoff Heights Med. Ctr.

Flanzig and Flanzig, LLP, Mineola, N.Y. (Daniel Flanzig of counsel), for appellant.

Law Offices of Christopher C. Thaens, P.C., New York, N.Y., for respondent.

Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (Lynn C. Hajek of counsel), for defendant Wyckoff Heights Medical Center.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

Opinion

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated March 21, 2013, which granted the motion of the defendant Wyckoff Anesthesia Services, P.C., to vacate an order of the same court dated February 18, 2011, granting the plaintiff's unopposed motion for leave to enter a default judgment against it upon its failure to appear or answer the complaint.

ORDERED that the order is affirmed, with costs to the respondent.

A defendant seeking to vacate a default must demonstrate both a reasonable excuse for the default and a potentially meritorious defense (see Pimento v. Rojas, 94 A.D.3d 844, 845, 941 N.Y.S.2d 517 ;

Bank of N.Y. Mellon v. Izmirligil, 88 A.D.3d 930, 931, 931 N.Y.S.2d 667 ; Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 921 N.Y.S.2d 643 ). The determination of what constitutes a reasonable excuse is generally left to the sound discretion of the Supreme Court (see

Apladenaki v. Greenpoint Mtge. Funding, Inc., 117 A.D.3d 975, 976, 986 N.Y.S.2d 588 ; Pimento v. Rojas, 94 A.D.3d at 845, 941 N.Y.S.2d 517 ; Bank of N.Y. Mellon v. Izmirligil, 88 A.D.3d at 931, 931 N.Y.S.2d 667 ). Here, the Supreme Court did not improvidently exercise its discretion in finding that the defendant Wyckoff Anesthesia Services, P.C. (hereinafter Wyckoff Anesthesia) presented a reasonable excuse sufficient to warrant vacating its default (see generally Apladenaki v. Greenpoint Mtge. Funding, Inc., 117 A.D.3d at 976, 986 N.Y.S.2d 588 ; see also Palmer v. Aliberti, 281 A.D.2d 156, 721 N.Y.S.2d 511 ; cf. Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 790, 921 N.Y.S.2d 643 ; Campbell v. Ghafoor, 8 A.D.3d 316, 317, 777 N.Y.S.2d 718 ). Further, Wyckoff Anesthesia established the existence of a potentially meritorious defense to the action. Moreover, there was no showing by the plaintiff that Wyckoff Anesthesia's failure to appear was willful, or that the plaintiff was significantly prejudiced by the default (see Apladenaki v. Greenpoint Mtge. Funding, Inc., 117 A.D.3d at 976, 986 N.Y.S.2d 588 ).

Wyckoff Anesthesia's remaining contention need not be reached in light of our determination.

We decline the request of Wyckoff Anesthesia and the defendant Wyckoff Heights Medical Center for the imposition of a sanction against the plaintiff for pursuing a frivolous appeal (see 22 NYCRR 130–1.1 [c] ).