Supreme Court of the State of New York
Appellate Division: Second Judicial Department
D47669
T/hu
AD3d
Argued - November 12, 2015
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2014-09445
DECISION & ORDER
Maiko Iijima-Hernandez, et al., appellants,
v City of New York, respondent.
(Index No. 17021/10)
Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & De Cicco, LLP,
New York, NY [Brian J. Isaac and Michael H. Zhu], of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, NY (Richard Dearing and
Marta Ross of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from
an order of the Supreme Court, Kings County (Ash, J.), dated August 13, 2014, which denied their
motion pursuant to CPLR 5015(a) to vacate an order of the same court dated April 24, 2013, granting
that branch of the defendant’s motion which was for summary judgment dismissing the complaint
upon their failure to oppose the motion and denying their oral application for an adjournment.
ORDERED that the order dated August 13, 2014, is reversed, on the facts and in the
exercise of discretion, with costs, the plaintiffs’ motion to vacate the order dated April 24, 2013, is
granted, and the matter is remitted to the Supreme Court, Kings County, for a new determination of
the defendant’s motion, inter alia, for summary judgment dismissing the complaint.
In March 2010, the plaintiff Maiko Iijima-Hernandez allegedly sustained personal
injuries when a street sign fell on her left shoulder. She filed a claim against the City of New York
and complied with all requisite procedural formalities before commencing this action. Upon
completion of disclosure, the plaintiffs filed a note of issue. Approximately four months later, the
defendant filed a motion, inter alia, for summary judgment dismissing the complaint. In the
January 20, 2016
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IIJIMA-HERNANDEZ v CITY OF NEW YORK
immediate aftermath of Hurricane Sandy, the motion was adjourned until December 2012. The
motion was then adjourned several more times, by consent of the parties, until March of 2013.
At that time, the parties signed a so-ordered briefing schedule which adjourned the
return date of the motion to April 24, 2013, and required the plaintiffs to file opposition papers by
April 1, 2013. The plaintiffs appeared before the Supreme Court on April 24, 2013, to request an
additional adjournment. However, in an order dated April 24, 2013, the court denied the plaintiffs’
application for an adjournment and, upon their failure to oppose the motion, granted the branch of
the defendant’s motion which was for summary judgment dismissing the complaint. The plaintiffs
moved to vacate that order pursuant to CPLR 5015(a). The court denied their motion.
“In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the
moving party is required to demonstrate a reasonable excuse for his or her default and a potentially
meritorious opposition to the motion” (Rocco v Family Foot Ctr., 94 AD3d 1077, 1079). Here, the
plaintiffs satisfied this burden (see Galgano v Fleckner, 128 AD3d 769). Accordingly, the Supreme
Court should have granted the plaintiffs’ motion pursuant to CPLR 5015(a) to vacate the order dated
April 24, 2013, denying their oral application for an adjournment and, upon their failure to oppose
the motion, granting that branch of the defendant’s motion which was for summary judgment
dismissing the complaint.
RIVERA, J.P., CHAMBERS, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
January 20, 2016
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IIJIMA-HERNANDEZ v CITY OF NEW YORK