December 3, 2013

Golden Age Med. Supply, Inc. v Windsor Ins. Co. (2013 NY Slip Op 52032(U))

Headnote

The court considered the fact that the plaintiff had initiated proceedings to recover first-party no-fault benefits in 2005, and the defendant defaulted in answering. More than four years later, the plaintiff moved for leave to enter a default judgment and the defendant cross-moved to dismiss the complaint. The main issue decided was whether the plaintiff had offered a reasonable excuse for the delay in moving for leave to enter a default judgment, and whether the complaint was meritorious. The holding of the case was that the plaintiff's unsubstantiated claim of law office failure was insufficient to explain the four-year delay, and thus the court reversed the order and granted the defendant's cross motion to dismiss the complaint as abandoned.

Reported in New York Official Reports at Golden Age Med. Supply, Inc. v Windsor Ins. Co. (2013 NY Slip Op 52032(U))

Golden Age Med. Supply, Inc. v Windsor Ins. Co. (2013 NY Slip Op 52032(U)) [*1]

Golden Age Med. Supply, Inc. v Windsor Ins. Co.

2013 NY Slip Op 52032(U) [41 Misc 3d 143(A)]

Decided on December 3, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2012-1363 K C.

Golden Age Medical Supply, Inc. as Assignee of PAVEL ZAYENCHIK, Respondent, — December 3, 2013
against
Windsor Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered May 18, 2010. 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, with $30 costs, and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in August of 2005. Defendant defaulted in answering. More than four years later, plaintiff moved for leave to enter a default judgment and defendant cross-moved to dismiss the complaint pursuant to CPLR 3215 (c). Defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion to dismiss the complaint.

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in [*2]moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious, failing which the court, upon its own initiative or on motion, must dismiss the complaint as abandoned (CPLR 3215 [c]; see County of Nassau v Chmela, 45 AD3d 722 [2007]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624 [2005]). Although the determination of what constitutes a reasonable excuse lies within the sound discretion of the motion court, reversal is warranted if that discretion is improvidently exercised (see Staples v Jeff Hunt Devs., Inc., 56 AD3d 459 [2008]). In the present case, plaintiff’s bald and unsubstantiated claim of law office failure was insufficient to explain the four-year delay in moving for leave to enter a default judgment (see Costello v Reilly, 36 AD3d 581 [2007]). Thus, we find that the Civil Court improvidently exercised its discretion in denying defendant’s cross motion to dismiss the complaint as abandoned.

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

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 03, 2013