        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

369
CA 11-01942
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


MARGARET M. FREMMING AND KENNETH W. FREMMING,
PLAINTIFFS-APPELLANTS,

                    V                              MEMORANDUM AND ORDER

PAUL E. NIEDZIALOWSKI AND ANNE M. NIEDZIALOWSKI,
DEFENDANTS-RESPONDENTS.


HAMSHER & VALENTINE, BUFFALO (RICHARD P. VALENTINE OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

LAW OFFICE OF LAURIE G. OGDEN, BUFFALO (PAMELA S. SCHALLER OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered December 13, 2010 in a personal injury
action. The order denied the motion of plaintiffs to vacate the order
granting the motion of defendants for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this personal injury action arising out of a
motor vehicle accident, plaintiffs appeal from an order denying their
motion pursuant to CPLR 5015 (a) to vacate a prior order granting
defendants’ motion for summary judgment dismissing the complaint. The
prior order was entered upon plaintiffs’ default, when plaintiffs
failed to file papers in opposition to the motion and their attorney
at that time failed to appear in court on the return date of the
motion. Plaintiffs thereafter retained new counsel, who moved to
vacate the order granting defendants’ motion (see id.). In support of
their motion, plaintiffs submitted an affidavit from their former
attorney, who stated that he failed to oppose defendants’ motion in a
timely manner due to mental health issues he was experiencing at the
time. Plaintiffs also submitted an affidavit from their former
attorney’s psychiatrist, who averred that he had been treating counsel
for depression and for attention deficit/hyperactivity disorder (ADHD)
for approximately 8½ years. Defendants opposed the motion, contending
that plaintiffs’ explanations for the default were unreasonable and
amounted to law office failure, and Supreme Court denied the motion
without explanation.

     We conclude that the court properly refused to vacate the default
pursuant to CPLR 5015 (a). “To vacate their default in opposing the
                                 -2-                           369
                                                         CA 11-01942

defendants’ motion for summary judgment, the plaintiffs were required
to demonstrate both a reasonable excuse for the default and a
potentially meritorious opposition to the motion” (Walker v Mohammed,
90 AD3d 1034, 1034; see Counsel Fin. Servs., LLC v David McQuade
Leibowitz, P.C., 81 AD3d 1421, 1422). Here, plaintiffs failed to
establish a reasonable excuse for the default, and we therefore need
not determine whether they had a potentially meritorious opposition to
the motion (see Buja v Shepard Niles, Inc., 45 AD3d 1391).

     Although an attorney’s illness may under certain circumstances
constitute a reasonable excuse for a default (see Weitzenberg v Nassau
County Dept. of Recreation & Parks, 29 AD3d 683, 684-685), that is not
the case here. The fact that plaintiffs’ former attorney suffered
from depression and ADHD does not constitute a reasonable excuse for
failing to submit papers in opposition to defendants’ motion and for
failing to appear in court on the return date thereof. Plaintiffs’
former attorney had been practicing law under a psychiatrist’s care
for over eight years, and there is no indication in the record that
his mental health issues had previously interfered with his ability to
meet his responsibilities. Indeed, the claim of plaintiffs’ former
attorney that his mental health problems caused the default are belied
by the fact that, during the same time frame, he participated in
various other aspects of the litigation without apparent difficulty.
Finally, we note that the court granted plaintiffs multiple
adjournments with respect to the return date of defendants’ motion,
and made clear on the record that no further adjournments would be
granted.




Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
