Facts
- Plaintiff Thierry Lamarre Bey filed a motion to vacate a default judgment that dismissed his complaint against the City of New York. [lines="16"]
- The Supreme Court, Bronx County, denied Bey's motion on August 8, 2023, citing failure to show a reasonable excuse for not opposing the City's dismissal motion. [lines="16"]
- Bey's counsel attempted to explain the failure to respond to the motion but could not justify why he did not e-file a notice of appearance until November 2021. [lines="18"]
- The court noted a broader neglect pattern, including Bey's previous counsels' failure to comply with a discovery order until March 2023. [lines="20-21"]
- Bey's current counsel delayed notifying him of the order of dismissal for nearly a year after failing to reach him by phone. [lines="22"]
Issues
- Whether the court erred in denying Bey's motion to vacate the default judgment due to lack of a reasonable excuse for not opposing the dismissal. [lines="17"]
- Whether Bey's counsel's conduct constituted a sufficient basis for the court to find a pattern of neglect. [lines="20"]
Holdings
- The denial of Bey's motion to vacate was proper as he failed to provide a reasonable excuse for his default and lack of response. [lines="17"]
- The court upheld the finding of a broader pattern of neglect by Bey's counsel, justifying the dismissal. [lines="20"]
OPINION
Thierry Lamarre Bey, Plaintiff-Appellant, v The City of New York et al., Defendants-Respondents.
Index No. 24662/16, Appeal No. 2905, Case No. 2024-00710
Appellate Division, First Department
October 24, 2024
2024 NY Slip Op 05274
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.
Before: Kern, J.P., Moulton, Scarpulla, Rodriguez, Michael, JJ.
Kaston & Aberle, LLP, Mineola (Richard M. Aberle of counsel), for appellant.
Morris Duffy Alonso Faley & Pitcoff, New York (Iryna S. Krauchanka of counsel), for respondents.
Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about August 8, 2023, which denied plaintiff‘s motion to vacate a default judgment dismissing the complaint against defendant City of New York, unanimously affirmed, without costs.
The court providently exercised its discretion in denying plaintiff‘s motion to vacate, because, notwithstanding plaintiff‘s showing of merit, he failed to demonstrate a reasonable excuse for failing to oppose the City‘s motion to dismiss (see
Moreover, the court properly found that counsel‘s failure to respond to the City‘s motion was part of a larger pattern of neglect (see id.; see also Spivey v City of New York, 167 AD3d 487 [1st Dept 2018], lv dismissed 35 NY3d 936 [2020]). For example, plaintiff has not explained why his second and third counsel did not fully comply with a September 3, 2020 discovery order until March 2023, when current counsel filed his motion to vacate (see Myzak v Rosania, 227 AD3d 548, 549 [1st Dept 2024]). Plaintiff also has not explained why, after his current counsel learned of the March 2022 order of dismissal and failed to reach plaintiff by phone, counsel did not notify plaintiff of the order by mail or seek to vacate the default until almost a year after notice of entry of the order (see Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454, 455 [1st Dept 2010], lv dismissed 15 NY3d 863 [2010]; Pichardo-Garcia v Josephine‘s Spa Corp., 91 AD3d 413, 414 [1st Dept 2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 24, 2024