By Chambers, J.P.; Lasalle, Iannacci, Christopher, JJ. XIAOEN XIE, res-app, v. PARK PLACE ESTATE, LLC, app-res — (Index No. 703150/13) David Yan, Flushing, NY, for appellant-respondent. Ross, Legan, Rosenberg, Zelen & Flaks, LLP, New York, NY (Michael Flaks of counsel), for respondent-appellant. In an action to recover damages for personal injuries, (1) the plaintiff appeals from a decision of the Supreme Court, Queens County (Janice A. Taylor, J.), dated May 26, 2017, and (2) the defendant appeals, and the plaintiff cross-appeals, from a judgment of the same court entered September 20, 2017. The judgment, insofar as appealed from, upon an order of the same court (Thomas D. Raffaele, J.) entered January 19, 2017, inter alia, granting that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1), and upon the decision, made after a nonjury trial on the issue of damages, is in favor of the plaintiff and against the defendant in the principal sum of $371,000. The judgment, insofar as cross-appealed from, awarded the plaintiff damages in the principal sums of only $75,000 for past pain and suffering and $250,000 for future pain and suffering, and failed to award any damages for future loss of earnings and past medical expenses. ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 AD2d 509); and it is further, ORDERED that the judgment is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof awarding the plaintiff damages for past pain and suffering in the principal sum of $75,000, and substituting therefor a provision awarding the plaintiff damages for past pain and suffering in the principal sum of $400,000, and (2) by adding a provision thereto awarding the plaintiff damages for past medical expenses in the sum of $68,801.79; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, and the matter is remitted to the Supreme County, Queens County, for the entry of an appropriate amended judgment; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. The plaintiff commenced this action to recover damages for personal injuries he sustained while working at a construction site in Queens. On the day of the accident, corrugated steel decking — referred to as Q decking — was being installed on the ground level of the building. Approximately half of the ground floor was covered with Q decking, but the panels had not yet been permanently attached to the underlying steel cross beams. The plaintiff was walking across the Q decking, intending to bring a gas cutter torch to a coworker who was standing on scaffolding located beyond the area where the Q decking had been installed. When the plaintiff was approximately 2 feet from the edge of the Q decking, a panel gave way, causing him to fall approximately 10 feet into the open basement of the building. After the Supreme Court awarded summary judgment to the plaintiff on the issue of liability on the cause of action alleging a violation of Labor Law §240(1), a nonjury trial on the issue of damages was held. The plaintiff submitted evidence that he sustained a spinal fracture requiring fusion surgery, as well as a head injury involving intracranial hemorrhage. Counsel for both parties stipulated, in open court, that the total medical expenses incurred by the plaintiff for the injures related to the subject accident amounted to $68,801.79. The Supreme Court awarded the plaintiff damages in the sums of $46,000 for past loss of earnings, $75,000 for past pain and suffering, and $250,000 for future pain and suffering, and did not award the plaintiff any damages for future loss of earnings and past medical expenses. The defendant appeals, and the plaintiff cross-appeals. We agree with the Supreme Court’s determination granting that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1). Labor Law §240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation related risks (see Ross v. Curtis Palmer Hydro Elec. Co., 81 NY2d 494, 499 500). Here, the plaintiff made a prima facie showing of his entitlement to judgment as a matter of law (see Cross v. CIM Group, LLC, 154 AD3d 432; Grigoropoulos v. Moshopoulos, 44 AD3d 1003, 1004; Brandl v. Ram Bldrs., Inc., 7 AD3d 655), and in opposition, the defendant failed to raise a triable issue of fact. In a nonjury case, where the record is complete, this Court’s power of review extends to making any appropriate award of damages (see Collazo v. State of New York, 117 AD3d 980, 981; Rivera v. State of New York, 205 AD2d 602, 602). Upon our review of the record, we find that an award of $400,000 for past pain and suffering is warranted by the facts (see Robles v. Polytemp, Inc., 127 AD3d 1052; Baird v. V.I.P. Mgt. Co., Inc., 60 AD3d 608). Moreover, the parties’ stipulation regarding the plaintiff’s past medical expenses should have been enforced by the Supreme Court (see Godfrey v. G.E. Capital Auto Lease, Inc., 89 AD3d 471, 479; Sanfilippo v. City of New York, 272 AD2d 201). The parties’ remaining contentions are without merit. CHAMBERS, J.P., LASALLE, IANNACCI and CHRISTOPHER, JJ., concur.
By Scheinkman, P.J.; Lasalle, Nelson, Lannacci, JJ. HORIO REALTY CORP., res, ET AL., plf, v. HUNTS POINT FLOWER MARKET, INC., ET AL., def, ELTON HERI, app (Index No. 1466/15) Morrison Cohen LLP, New York, NY (Y. David Scharf, Christopher Milito, and Joaquin Ezcurra of counsel), for appellant. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone LLP, Brooklyn, NY (Andrea J. Caruso of counsel), for respondent. In an action to set aside a judicial sale of real property, the defendant Elton Heri appeals from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated September 14, 2018. The order denied that defendant’s motion pursuant to CPLR 5015(a) to vacate (1) an order of the same court dated June 9, 2017, inter alia, granting the motion of the plaintiff Horio Realty Corp. for summary judgment on the complaint, upon that defendant’s default in appearing for oral argument, and (2) an order of the same court dated December 21, 2017, which, inter alia, vacated the judicial sale of the subject property. ORDERED that the order dated September 14, 2018, is reversed, on the law and in the exercise of discretion, with costs, and the motion of the defendant Elton Heri pursuant to CPLR 5015(a) to vacate the orders dated June 9, 2017, and December 21, 2017, is granted. In November 2014, the defendant Elton Heri purchased real property located on 18th Avenue in Brooklyn (hereinafter the subject property) at a judicial sale. Subsequently, the plaintiffs commenced this action to vacate the judicial sale of the subject property, alleging that the sale was defective for lack of notice, and that the purchase price paid by Heri was unconscionable. The plaintiff Horio Realty Corp. (hereinafter Horio) moved for summary judgment on the complaint, and Heri cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against him. The motion and the cross motion were fully briefed, and the parties stipulated to a return date of June 16, 2017, for the Supreme Court to hear oral argument. It is undisputed that thereafter, the court, sua sponte, moved the return date up one week, to June 9, 2017, and did not notify the parties. Despite the lack of notice, counsel for Horio appeared in court on June 9, 2017, but Heri’s counsel failed to appear. In an order dated June 9, 2017, the Supreme Court, inter alia, granted Horio’s motion for summary judgment on the complaint, upon Heri’s default in appearing for oral argument. Subsequently, in an order dated December 21, 2017, the court, among other things, vacated the judicial sale of the subject property. Heri moved pursuant to CPLR 5015(a) to vacate the orders dated June 9, 2017, and December 21, 2017. In an order dated September 14, 2018, the court denied Heri’s motion. Heri appeals. To vacate his default in appearing for oral argument, Heri was required to demonstrate a reasonable excuse for his default and a potentially meritorious defense to Horio’s motion (see CPLR 5015[a][1]; Gately v. Drummond, 161 AD3d 947, 948; Needleman v. Tornheim, 106 AD3d 707, 708). Whether an excuse is reasonable is a determination within the sound discretion of the court (see Young Su Hwangbo v. Nastro, 153 AD3d 963, 965), and the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue (see Sarcona v. J & J Air Container Sta., Inc., 111 AD3d 914, 915; Swensen v. MV Transp., Inc., 89 AD3d 924, 925; Henry v. Kuveke, 9 AD3d 476, 479). Here, the affidavits and documentary evidence submitted by Heri in support of his motion set forth a detailed and credible explanation for his counsel’s failure to appear at oral argument (see Gately v. Drummond, 161 AD3d at 948; Swensen v. MV Transp., Inc., 89 AD3d at 925). Moreover, his evidentiary submissions established a potentially meritorious defense to Horio’s motion (see Needleman v. Tornheim, 106 AD3d at 708). Accordingly, the Supreme Court should have granted Heri’s motion to vacate the orders entered upon his default. Heri’s remaining contentions either are without merit or need not be reached in light of our determination. SCHEINKMAN, P.J., LASALLE, BRATHWAITE NELSON and IANNACCI, JJ., concur.
