Luciano v. Felix

Summary

The Appellate Division, First Department affirmed the denial of plaintiff's motion to vacate a default under CPLR 5015, finding that law office failure did not provide a reasonable excuse. The court dismissed appeals from nonappealable orders and stated that, if reached, the serious-injury threshold issue would also favor defendants.

Holdings

1. The appeals from the order granting defendants' unopposed motion for summary judgment and the order denying plaintiff's motion for leave to renew and reargue were dismissed because they were taken from nonappealable orders.
2. When summary judgment has been granted on default, the proper remedy is a motion to vacate the default under CPLR 5015, rather than a motion to renew or reargue.
3. Plaintiff failed to establish a reasonable excuse for her default, and law office failure was insufficient under the circumstances.
4. Because plaintiff failed to provide an acceptable excuse for the default, the court was not required to decide whether she demonstrated a meritorious cause of action.

Questions Presented

1. Whether the appeals from the order granting summary judgment on default and the order denying renewal and reargument were taken from appealable orders.
2. Whether plaintiff established a reasonable excuse for her default sufficient to warrant vacatur under CPLR 5015.
3. Whether the court was required to determine whether plaintiff had a meritorious cause of action when she failed to establish an acceptable excuse for the default.
4. Whether plaintiff's proposed opposition would have raised a triable issue concerning a causally related serious injury under Insurance Law § 5102(d).

Disposition

affirmed