Citywide Med. Servs., P.C. v Metropolitan Cas. Ins. Co. (2018 NY Slip Op 50119(U))

Freiberg, Peck & Kang, LLP (Yilo J. Kang. Esq.), for appellant. Murray Hill Legal Services, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), dated February 24, 2015. The order, insofar as appealed from, denied defendant’s cross motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action in 2006 to recover assigned first-party no-fault benefits. Defendant defaulted in answering, and, more than seven years later, plaintiff moved for the entry of a default judgment. Defendant cross-moved to dismiss the complaint as abandoned (see CPLR 3215 [c]). The Civil Court, in effect, denied the motion and cross motion but permitted defendant to submit an answer and directed plaintiff to file a notice of trial. Defendant appeals from so much of the order as denied its cross motion to dismiss the complaint.

A party who fails to initiate a proceeding for the entry of a default judgment within a year of the default must establish a reasonable excuse for the delay and “demonstrate that the complaint is meritorious, failing which the court, . . . on motion, must dismiss the complaint as abandoned” (Valentin Avanessov, M.D., P.C. v Progressive Ins. Co., 31 Misc 3d 139[A], 2011 NY Slip Op 50778[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see Giglio v NTIMP, Inc., 86 AD3d 301 [2011]).

Here, plaintiff failed to establish a reasonable excuse for the delay (see Mattera v Capric, 54 AD3d 827 [2008]). Plaintiff’s counsel asserted only that, in 2006, there was a possible settlement entered into between the parties. This lone assertion, along with a 2006 letter referencing a purported settlement, is insufficient to establish a history of settlement discussions which could possibly excuse the seven-year delay (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783 [2008]). Moreover, plaintiff submitted “neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim” (Eagle Surgical Supply, Inc. v QBE Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51455[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). The complaint, attached to the motion, to which the claim forms at issue were not attached, was signed by an attorney without personal knowledge of the facts of the claims asserted therein (see Solano v Castro, 72 AD3d 932 [2010]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion to dismiss the complaint is granted.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.