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FILED: NEW YORK COUNTY CLERK 11/21/2019 04:33 PM INDEX NO. 160357/2018
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/21/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------- X
SARA YASIN,
Plaintiff, Index No. 160357/18
-against- Motion Sequence #1
EQUINOX HOLDINGS INC.,
Defendant.
------------ ---- --X
MEMORANDUM IN SUPPORT OF PLAINTIFF'S
MOTION PURSUANT TO CPLR §5015(a)(1)
TOVACATETHEORDERDATED
NOVEMBER 7. 2019 DISMISSING THIS ACTION
This Memorandum is subrnitted in support of the motion by plaintiff Sara Yasin
pursuant to CPLR §5015(a)(1) to vacate an Order of Dismissal entered by the Court on
November 7, 2019, following the non-appearance of plaintiff's counsel, Richard M. Asche, at a
scheduled conference on November 6.
As shown in the accompanying Affidavit of Laverne Carolina and the
accompanying Affirmation of Mr. Asche, Mr. Asche's failure to appear resulted from an
erroneous and apparently ill-advised assumption that a stipulation adjourning the conference
filed via ECF five days before the conference would be so ordered by the Court. The reason for
the requested adjournment was that Mr. Asche was embarking on a long-planned vacation in
Southeast Asia during the period November 2-18, 2019.
Plaintiff's counsel has not previously failed to appear at a conference in this case.
Plaintiff's counsel's failure to appear in no way caused prejudice to defendant, who in fact
consented to the adjournment.
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FILED: NEW YORK COUNTY CLERK 11/21/2019 04:33 PM INDEX NO. 160357/2018
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/21/2019
This is an action in which plaintiff slipped and fell on a wet and slippery shower
room floor at a health club run by the defendant Equinox. Plaintiff suffered physical injuries
which have been documented, and her medical records have been supplied to defendant's
counsel. S_ee attached Affidavit of Merit of plaintiff Sara Yasin and annexed Bill of Particulars.
To support a motion to vacate a default pursuant to CPLR 5015(a)(1), the
party is required to show a reasonable excuse and that the action has merit. "There is
defaulting
a strong public policy that favors deciding matters on their merits in the absence of demonstrable
omitted]."
prejudice [Citations Stephenson v. Hotel Emoloyees & Restaurant Emp_loyees, Local
(135
100, 293 A.D.2d 324 Dept. 2002). S_ee, allso, Cornwall Warehousing, Inc. Lerner, 171
(13t
A.D.3d 540 Dept. 2019) and cases cited therein. As the Court noted in Santiago v. Valentin,
)13
125 A.D.3d 459 Dept. 2015), "'Plaintiff should not be deprived of his day in court by his
error.' 634.]"
attorney's inadvertent [Chelli, 63 A.D3d at
A showing of excusable default may be premised on law office failure. Barasch
(13
v. Micucci, 49 N.Y.2d 594 (1980); see also, Mediaville v. Gurman, 272 A.D.2d 146, 148
Dept. 2000). In Stephenson, supra, plaintiff's counsel failed to appear at a conference and failed
even to request an adjournment of the conference. The Appellate Division reversed the trial
court's refusal to vacate, observing that counsel's failure to seek an adjournment "while
discourteous, amounts to law office failure, which does not preclude excusing a default or
delay."
Stephenson, supra. Here, unlike in Stenhenson, plaintiff's counsel did request an
adjournment from the Court in advance of the scheduled conference.
(13t
S_eee, also, Knight v. Acacia Network, Inc., 2019 App. Div. LEXIS 8365 Dept.
November 10, 2019) (failure to respond to a motion for two weeks, held excusable). B&H Fla.
(1"'
Notes LLC v. Ashkenazi, 172 A.D.3d 433 Dept. 2019) (failure to appear at a conference
because it had been calendared by law firm for the wrong date, held excusable); Hamilton v.
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FILED: NEW YORK COUNTY CLERK 11/21/2019 04:33 PM INDEX NO. 160357/2018
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/21/2019
(131
National Amusements. Inc., 167 A.D.3d 431 Dept. 2018) (motion to vacate granted where
default was isolated and no prejudice resulted).
Conclusion
Plaintiff's motion to vacate the Court's order dated November 7, 2019 dismissing
the case should be granted.
Dated: New York, New York
November 21, 2019
Respectfully submitted,
Litman, A & Gioiella, LL
By:
Richard M. Asche
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Preview
FILED: NEW YORK COUNTY CLERK 11/21/2019 04:33 PM INDEX NO. 160357/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/21/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------- X SARA YASIN, Plaintiff, Index No. 160357/18 -against- Motion Sequence #1 EQUINOX HOLDINGS INC., Defendant. ------------ ---- --X MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION PURSUANT TO CPLR §5015(a)(1) TOVACATETHEORDERDATED NOVEMBER 7. 2019 DISMISSING THIS ACTION This Memorandum is subrnitted in support of the motion by plaintiff Sara Yasin pursuant to CPLR §5015(a)(1) to vacate an Order of Dismissal entered by the Court on November 7, 2019, following the non-appearance of plaintiff's counsel, Richard M. Asche, at a scheduled conference on November 6. As shown in the accompanying Affidavit of Laverne Carolina and the accompanying Affirmation of Mr. Asche, Mr. Asche's failure to appear resulted from an erroneous and apparently ill-advised assumption that a stipulation adjourning the conference filed via ECF five days before the conference would be so ordered by the Court. The reason for the requested adjournment was that Mr. Asche was embarking on a long-planned vacation in Southeast Asia during the period November 2-18, 2019. Plaintiff's counsel has not previously failed to appear at a conference in this case. Plaintiff's counsel's failure to appear in no way caused prejudice to defendant, who in fact consented to the adjournment. 1 of 3 FILED: NEW YORK COUNTY CLERK 11/21/2019 04:33 PM INDEX NO. 160357/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/21/2019 This is an action in which plaintiff slipped and fell on a wet and slippery shower room floor at a health club run by the defendant Equinox. Plaintiff suffered physical injuries which have been documented, and her medical records have been supplied to defendant's counsel. S_ee attached Affidavit of Merit of plaintiff Sara Yasin and annexed Bill of Particulars. To support a motion to vacate a default pursuant to CPLR 5015(a)(1), the party is required to show a reasonable excuse and that the action has merit. "There is defaulting a strong public policy that favors deciding matters on their merits in the absence of demonstrable omitted]." prejudice [Citations Stephenson v. Hotel Emoloyees & Restaurant Emp_loyees, Local (135 100, 293 A.D.2d 324 Dept. 2002). S_ee, allso, Cornwall Warehousing, Inc. Lerner, 171 (13t A.D.3d 540 Dept. 2019) and cases cited therein. As the Court noted in Santiago v. Valentin, )13 125 A.D.3d 459 Dept. 2015), "'Plaintiff should not be deprived of his day in court by his error.' 634.]" attorney's inadvertent [Chelli, 63 A.D3d at A showing of excusable default may be premised on law office failure. Barasch (13 v. Micucci, 49 N.Y.2d 594 (1980); see also, Mediaville v. Gurman, 272 A.D.2d 146, 148 Dept. 2000). In Stephenson, supra, plaintiff's counsel failed to appear at a conference and failed even to request an adjournment of the conference. The Appellate Division reversed the trial court's refusal to vacate, observing that counsel's failure to seek an adjournment "while discourteous, amounts to law office failure, which does not preclude excusing a default or delay." Stephenson, supra. Here, unlike in Stenhenson, plaintiff's counsel did request an adjournment from the Court in advance of the scheduled conference. (13t S_eee, also, Knight v. Acacia Network, Inc., 2019 App. Div. LEXIS 8365 Dept. November 10, 2019) (failure to respond to a motion for two weeks, held excusable). B&H Fla. (1"' Notes LLC v. Ashkenazi, 172 A.D.3d 433 Dept. 2019) (failure to appear at a conference because it had been calendared by law firm for the wrong date, held excusable); Hamilton v. 2 of 3 FILED: NEW YORK COUNTY CLERK 11/21/2019 04:33 PM INDEX NO. 160357/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/21/2019 (131 National Amusements. Inc., 167 A.D.3d 431 Dept. 2018) (motion to vacate granted where default was isolated and no prejudice resulted). Conclusion Plaintiff's motion to vacate the Court's order dated November 7, 2019 dismissing the case should be granted. Dated: New York, New York November 21, 2019 Respectfully submitted, Litman, A & Gioiella, LL By: Richard M. Asche 3 of 3