By Rivera, J.P.; Cohen, Hinds-Radix and Maltese, JJ. Maryann Quercia, ap, v. Silver Lake Nursing Home, Inc., res — (Index No. 100130/05) In an action, inter alia, to recover damages for negligence and violation of Public Health Law §2801-d, the plaintiff appeals from two orders of the Supreme Court, Richmond County (Judith N. McMahon, J.), both dated June 23, 2017. The first order granted the defendant’s oral application to dismiss the complaint based upon the plaintiff’s failure, among other things, to proceed with jury selection. The second order, insofar as appealed from, denied those branches of the plaintiff’s motion which were pursuant to CPLR 5015(a)(1) to vacate the first order and to restore the action to the trial calendar. ORDERED that the appeal from the first order is dismissed, without costs or disbursements, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a][2]), and we decline to grant leave to appeal, as the appeal from that order has been rendered academic in light of our determination of the appeal from the second order; and it is further, ORDERED that the second order is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, those branches of the plaintiff’s motion which were pursuant to CPLR 5015(a)(1) to vacate the first order and to restore the action to the trial calendar are granted, and the Chief Clerk of the Supreme Court, Richmond County, is directed to set this matter for trial commencing on a date within 60 days of the date of the service of a copy of this decision and order with notice of entry upon him or her. In January 2005, this action was commenced, inter alia, to recover damages for negligence and violation of Public Health Law §2801-d, alleging that the plaintiff’s decedent sustained certain injuries while in the care of the defendant nursing home. On September 26, 2016, the date scheduled for jury selection, the plaintiff’s then-attorney, Steven Bandel, failed to appear due to his engagement with a parole revocation hearing in a criminal proceeding, and the Supreme Court adjourned the matter to September 28, 2016. On September 28, 2016, Bandel again failed to appear for jury selection, and a per diem attorney retained by Bandel advised the court that Bandel was unable to appear on that date due to his engagement with four parole revocation hearings in criminal proceedings. The court granted the defendant’s oral application to dismiss the complaint based upon the plaintiff’s failure to proceed with jury selection and the plaintiff’s failure to disclose expert witness information pursuant to CPLR 3101(d). The transcript of the proceeding on September 28, 2016, was so-ordered by the court on June 23, 2017. In February 2017, the plaintiff moved, among other things, pursuant to CPLR 5015(a)(1) to vacate the order granting the defendant’s application to dismiss the complaint, and to restore the action to the trial calendar. At a proceeding on March 6, 2017, the Supreme Court denied the plaintiff’s motion. The transcript of that proceeding was so-ordered by the court on June 23, 2017. The plaintiff appeals. In moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing for a scheduled trial date, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see Crevecoeur v. Mattam, 172 AD3d 813; Cox v. Marshall, 161 AD3d 1140, 1141). ”The determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court” (Option One Mtge. Corp. v. Rose, 164 AD3d 1251, 1252). However, in making that discretionary determination, 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 (see Crevecoeur v. Mattam, 172 AD3d at 814; Moore v. Day, 55 AD3d 803, 804). Under the circumstances of this case, the plaintiff demonstrated a reasonable excuse for the default based upon Bandel’s engagement in other matters on September 26 and 28, 2016 (see Piper-Rader v. Muslim, 99 AD3d 686, 687; Matter of Klein v. Persaud, 84 AD3d 959, 960; McCluskey v. Ferriter, 292 AD2d 244). In a supporting affirmation, accompanied by affirmations of engagement, Bandel averred that he had made a mistake regarding the date scheduled for jury selection and not discovered his error until September 23, 2016, during settlement discussions. Bandel further averred that he had parole revocation hearings already scheduled for September 26 and 28, 2016, that he was the only practicing attorney in his law firm, and that he retained a per diem attorney to appear on his behalf in this action. Since there is no evidence that Bandel’s inability to appear on September 26 and 28, 2016, was willful (see Matter of Muhammadu v. Barcia, 100 AD3d 904, 905; Ito v. Ito, 73 AD3d 983, 983-984; Liotti v. Peace, 15 AD3d 452, 453), his engagement on those dates with criminal proceedings constituted a reasonable excuse for the default. Additionally, the physician’s affirmation submitted by the plaintiff was sufficient to establish the existence of a potentially meritorious cause of action (see Piper-Rader v. Muslim, 99 AD3d at 687). We acknowledge that the Supreme Court has the responsibility to assure that the cases before it are handled expeditiously. We also recognize that the court had appropriate reasons for being concerned regarding further delay in this case, which is in its second decade. However, the court indicated that it would have granted an adjournment had it been on consent, just as it had previously granted two prior adjournments, each for approximately six months. Moreover, the severe remedy of dismissal, with its concomitant deprivation of one’s day in court, is hardly the only tool in the judicial case management tool box. In a circumstance such as the one presented here, the court, upon granting the adjournment requested on September 26, 2016, could have granted an adjournment of sufficient length so as to invoke the provisions of 22 NYCRR 125.1(g). The court could also have considered conditioning the granting of an adjournment upon the plaintiff’s acceptance of responsibility for reasonable expenses incurred by the defendant for proceedings rendered unnecessary. Here, the court did not provide an explanation as to why a lesser sanction would have been insufficient. In view of the age of this case, we direct that the trial of this action proceed promptly by requiring that the trial of this action commence within 60 days of the service of this decision and order, with notice of its entry, upon the Chief Clerk of the Supreme Court, Richmond County (see Crevecoeur v. Mattam, 172 AD3d at 814). The parties’ remaining contentions either are without merit or need not be reached in light of our determination. Accordingly, the Supreme Court should have granted those branches of the plaintiff’s motion which were pursuant to CPLR 5015(a)(1) to vacate the order granting the defendant’s application to dismiss the complaint, and to restore the action to the trial calendar. RIVERA, J.P., COHEN, HINDS-RADIX and MALTESE, JJ., concur.
By Dillon, J.P.; Lasalle, Barros and Christopher, JJ. PHH Mortgage Corporation, res, v. Charise L. Burt, etc., appellant def; Estate of Sydney Burt, proposed intervenor. (Index No. 12668/11) In an action to foreclose a mortgage, the defendant Charise L. Burt appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered March 23, 2016. The order denied the motion of the proposed intervenor, the Estate of Sydney Burt, inter alia, for leave to intervene in the action and to vacate a judgment of foreclosure and sale of the same court dated March 4, 2014. ORDERED that the order is affirmed, with costs. On October 12, 2004, Charise L. Burt (hereinafter the defendant), Sydney Burt, and Karyn Berkley executed a promissory note in the amount of $170,000 in favor of Merrill Lynch Credit Corporation. As security for the note, the defendant, Sydney Burt, and Berkley executed a mortgage encumbering certain real property located in Roosevelt. The property was owned by the defendant, Sydney Burt, and Berkley as joint tenants with the right of survivorship. Sydney Burt passed away on March 13, 2005. The defendant and Berkley defaulted on the loan by failing to make the monthly installment payment due on February 1, 2011, or any payments thereafter. On May 11, 2011, the mortgage was assigned to the plaintiff. The plaintiff commenced this action to foreclose the mortgage against the defendant and others, but not as against the Estate of Sydney Burt. Thereafter, the plaintiff moved for an order of reference and for leave to enter a default judgment upon the defendant’s failure to serve an answer to the complaint. The defendant cross-moved to vacate her default and to compel the acceptance of a late answer. In an order dated March 6, 2013, the Supreme Court granted the plaintiff’s motion and denied the defendant’s cross motion, finding that the defendant failed to establish a reasonable excuse for her default or a meritorious defense. Thereafter, an order of reference, dated August 27, 2013, and a default judgment of foreclosure and sale, dated March 4, 2014, were entered. The defendant filed a second motion seeking to vacate her default, to compel the acceptance of a late answer, and to dismiss the complaint for failure to join the Estate of Sydney Burt as a claimed necessary party. By order entered May 28, 2014, the court denied the defendant’s second motion in its entirety. After additional motion practice, on November 24, 2015, the Estate of Sydney Burt (hereinafter the proposed intervenor) moved, inter alia, for leave to intervene in the action and to vacate the judgment of foreclosure and sale. By order entered March 23, 2016, the Supreme Court denied the proposed intervenor’s motion, among other things, on the ground that it was barred by the law of the case doctrine. The defendant appeals. Contrary to the plaintiff’s contention, under the particular facts and circumstances of this case, we find that the defendant is aggrieved by the order entered March 23, 2016, and thus, she may appeal from the order (see CPLR 5511; Auerbach v. Bennett, 64 AD2d 98, 104, mod on other grounds 47 NY2d 619). “The doctrine of ‘law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” (Martin v. City of Cohoes, 37 NY2d 162, 165 [internal quotation marks omitted]). The doctrine “applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision” (Baldasano v. Bank of N.Y., 199 AD2d 184, 185; see Gay v. Farella, 5 AD3d 540, 541; D’Amato v. Access Mfg., 305 AD2d 447, 448), “and to the same questions presented in the same case” (RPG Consulting, Inc. v. Zormati, 82 AD3d 739, 740, citing People v. Evans, 94 NY2d 499, 502; see Matter of McGrath v. Gold, 36 NY2d 406, 413; Erickson v. Cross Ready Mix, Inc., 98 AD3d 717). ”Like claim preclusion and issue preclusion, preclusion under the law of the case contemplates that the parties had a ‘full and fair’ opportunity to litigate the initial determination” (People v. Evans, 94 NY2d at 502). Here, the issue of whether the proposed intervenor was a necessary party in the action was determined on the merits by the Supreme Court in its order entered May 28, 2014, wherein it denied the defendant’s motion, inter alia, to dismiss the complaint for failure to join the proposed intervenor. Thus, the parties had a full and fair opportunity to litigate the issue of whether the proposed intervenor was a necessary party. In any event, we agree with the Supreme Court’s determination to deny intervention. New York defines a joint tenancy as “an estate held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and creating in each joint tenant a right of survivorship” (Smith v. Bank of Am., N.A., 103 AD3d 21, 23 [internal quotation marks omitted]; see Trotta v. Ollivier, 91 AD3d 8, 12). ”The right of survivorship has been defined as ‘a right of automatic inheritance’ where, upon the death of one joint tenant, the property does not pass through the rules of intestate succession, but is automatically inherited by the remaining tenant” (Trotta v. Ollivier, 91 AD3d at 12, quoting United States v. Craft, 535 US 274, 280). Therefore, when one joint tenant dies, the other joint tenants automatically inherit the property. This is in marked contrast to tenancies in common which allow a decedent’s share of property to pass under the rules of inheritance (see Trotta v. Ollivier, 91 AD3d at 13). Thus, here, upon the Sydney Burt’s death, his interest in the property did not pass to his estate, the proposed intervenor; rather, it automatically passed to the remaining joint tenants, the defendant and Berkley. Therefore, the proposed intervenor was not a necessary party and did not have the right to intervene in the foreclosure action. DILLON, J.P., LASALLE, BARROS and CHRISTOPHER, JJ., concur.
