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

436
CA 16-01266
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


MIA KADAH, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

KEITH N. BYRD AND ALPHONSO BRADSHAW,
DEFENDANTS-RESPONDENTS.


WILLIAM MATTAR, P.C., WILLIAMSVILLE (MATTHEW J. KAISER OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

GOLDBERG SEGALLA, LLP, SYRACUSE (HEATHER K. ZIMMERMAN OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County
(Walter W. Hafner, Jr., A.J.), entered January 8, 2016. The order
denied the motion of plaintiff to vacate the order dismissing the
complaints.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, plaintiff’s motion is
granted, the order entered September 22, 2015 is vacated, and the
complaints against defendants-respondents are reinstated.

     Memorandum: Plaintiff commenced this consolidated personal
injury action in May 2013 seeking damages for injuries that she
sustained in a motor vehicle accident, while she was a passenger in a
rental vehicle operated by defendant Keith N. Byrd and leased by
defendant Alphonso Bradshaw. Supreme Court granted defendants’
unopposed motion to dismiss the complaints on the ground that
plaintiff failed to comply with an order directing her to submit to a
medical examination conducted by defendants’ expert, and plaintiff
appeals from an order denying her motion to vacate the order of
dismissal.

     Plaintiff was deposed in March 2014, and, upon her failure to
appear for an independent medical examination (IME) in July 2014,
defendants moved to compel her to submit to an IME. In December 2014,
the parties tentatively agreed to settle the action, which would
render an IME unnecessary, and defendants withdrew their motion.
Thereafter, plaintiff’s counsel attempted to obtain consent from
plaintiff’s supplemental uninsured motorist (SUM) carrier to resolve
the claim. The SUM carrier, however, mistakenly asserted that its
consent was not required because plaintiff was not entitled to seek
SUM coverage for the accident inasmuch as the full amounts of the
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                                                         CA 16-01266

underlying policies had not been tendered. As a result, progress
toward a settlement was temporarily halted.

     On May 14, 2015, defendants brought another motion seeking to
compel plaintiff to submit to an IME. In response, plaintiff’s
counsel sought an adjournment so that the SUM coverage dispute could
be resolved and the case could be settled. In June 2015, the parties
met with Supreme Court to discuss the SUM coverage issue, and once
again the parties tentatively agreed to settle the case.

     Shortly thereafter, at defendants’ request, the court placed the
motion to compel plaintiff to submit to an IME back on its calendar
for July 16, 2015. By letter, the court advised the parties that,
“[i]f no appearance is made, the Court will order the IME for August
10, 2015,” and that “[n]o requests for adjournments will be
considered.” On July 16, 2015, the court granted defendants’ motion
without opposition from plaintiff, and the IME was ordered to take
place at 12:30 p.m. on August 10, 2015. Although plaintiff appeared
on that date for her IME, she was 15 minutes late and was turned away
by the IME physician’s receptionist.

     On August 19, 2015, defendants moved to dismiss the complaints on
the ground that plaintiff failed to comply with the order directing
plaintiff to appear for the IME. Later that same afternoon,
plaintiff’s counsel contacted defendants’ counsel and left a voicemail
message requesting that the IME be rescheduled and the motion
withdrawn, but that phone call went unreturned. After he called
defendants’ counsel, plaintiff’s counsel mistakenly believed that
defendants’ motion would be withdrawn or adjourned, and so plaintiff’s
counsel failed to enter defendants’ motion into his calendar, did not
submit any responding papers, and did not appear for argument on the
motion. The court granted defendants’ unopposed motion and, on
September 22, 2015, the court entered an order dismissing the
complaint.

     Plaintiff subsequently filed the present motion seeking, inter
alia, to vacate the September 22, 2015 order pursuant to CPLR 5015 (a)
(1). The court denied the motion, stating that plaintiff failed to
“establish her default was excusable,” and that defendants
“established [plaintiff’s] persistent neglect in the prosecution of
this matter.” The court further found that plaintiff “misrepresented
the status of the SUM issue, causing further delays,” and that
plaintiff’s “repeated failures to appear for an IME and the
misrepresentations regarding the SUM issue constitute[] a pattern of
willful default or neglect that should not be excused by the court.”

     We agree with plaintiff that the court erred in denying her
motion to vacate the order of dismissal. “In determining whether to
vacate an order entered on default, ‘the court should consider
relevant factors, such as the extent of the delay, prejudice or lack
of prejudice to the opposing party, whether there has been
willfulness, and the strong public policy in favor of resolving cases
on the merits’ ” (Calaci v Allied Interstate, Inc., 108 AD3d 1127,
1128). “It is well established that law office failure may be
                                 -3-                           436
                                                         CA 16-01266

excused, in the court’s discretion, when deciding a motion to vacate a
default order” (id.).

     Here, plaintiff’s default in responding to the motion to dismiss
was due to law office failure. Upon learning of the default,
plaintiff immediately sought to vacate the order, thereby establishing
both a minimal delay and her continued intent to pursue the action.
Further, the record establishes that plaintiff did in fact appear for
an IME pursuant to the July 16, 2015 order, albeit late, thereby
undermining any claim that plaintiff’s conduct could be construed as
“repeated failures to appear for an IME.” Likewise, in light of the
SUM carrier’s ultimate concession that its assessment of the law was
incorrect and that plaintiff was entitled to seek SUM coverage,
plaintiff made no misrepresentations regarding the issues related to
SUM coverage that could constitute a pattern of willful default or
neglect. Moreover, on this record, we can discern no prejudice to
defendants from plaintiff’s failure to appear for the scheduled IME,
inasmuch as the IME likely was unnecessary because of the pending
settlement. Thus, in light of the “ ‘strong public policy in favor of
resolving cases on the merits’ ” (Lauer v City of Buffalo, 53 AD3d
213, 217; see Matter of County of Livingston [Mort], 101 AD3d 1755,
1756, lv denied 20 NY3d 862), we conclude that dismissal of the
complaints was not warranted (see generally Calaci, 108 AD3d at 1128-
1129; Gokey v DeCicco, 24 AD3d 860, 861-862).




Entered:   March 31, 2017                       Frances E. Cafarell
                                                Clerk of the Court
