December 11, 2013

DJS Med. Supplies, Inc. v Infinity Ins. Co. (2013 NY Slip Op 52073(U))

Headnote

The relevant facts the court considered were that the plaintiff commenced an action in 2006 to recover assigned first-party no-fault benefits, and the defendant defaulted. More than a year later, the plaintiff moved for leave to enter a default judgment, which was granted by the Civil Court. The main issue decided was whether the default judgment and the underlying order granting the plaintiff's motion should be vacated, and whether the complaint should be dismissed. The holding of the case was that while the defendant failed to demonstrate that the default judgment should be vacated pursuant to CPLR 5015 (a) (3), the dismissal of the complaint was required pursuant to CPLR 3215 (c) as the plaintiff failed to offer any excuse for its delay in moving for leave to enter a default judgment. Furthermore, the court exercised its inherent discretionary power to vacate judgments in situations that warrant vacatur but were not specifically codified in CPLR 5015 (a), and therefore granted defendant's motion to vacate the default judgment and dismiss the complaint.

Reported in New York Official Reports at DJS Med. Supplies, Inc. v Infinity Ins. Co. (2013 NY Slip Op 52073(U))

DJS Med. Supplies, Inc. v Infinity Ins. Co. (2013 NY Slip Op 52073(U)) [*1]

DJS Med. Supplies, Inc. v Infinity Ins. Co.

2013 NY Slip Op 52073(U) [41 Misc 3d 145(A)]

Decided on December 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2013

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

PRESENT: : RIOS, J.P., PESCE and SOLOMON, JJ
.

DJS Medical Supplies, Inc. as Assignee of OLGA POLYAKOVA, Respondent, —
against
Infinity Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered July 8, 2011. The order denied defendant’s motion, in effect, to vacate a default judgment and the underlying order granting plaintiff’s motion to enter a default judgment, and to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion, in effect, to vacate a default judgment and the underlying order granting plaintiff’s motion to enter a default judgment, and to dismiss the complaint is granted.

Plaintiff commenced this action in April 2006 to recover assigned first-party no-fault benefits. Defendant defaulted. More than a year later, plaintiff moved for leave to enter a default judgment. By order dated July 13, 2007, the Civil Court granted plaintiff’s motion on defendant’s default. Subsequently, defendant moved pursuant to CPLR 5015 (a) (3), in effect, to vacate the July 13, 2007 order and the default judgment and to dismiss the complaint pursuant to CPLR 3215 (c). The Civil Court denied the motion and defendant appeals.

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after a default, the plaintiff is obligated to offer a reasonable excuse for its delay in moving for leave to enter a default judgment, and must demonstrate that
it has a meritorious cause of action. In the event the plaintiff fails to meet its burden, the court, upon its own initiative or on motion, “shall dismiss the complaint as abandoned” (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d 722 [2007]; Jones v Corley, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). As plaintiff failed to offer any excuse for its delay in moving for leave to enter a default judgment, the dismissal of the complaint was required pursuant to CPLR 3215 (c), and it was improper for the court to have granted plaintiff’s motion.

While defendant failed to demonstrate that the default judgment should have been vacated pursuant to CPLR 5015 (a) (3), under the circumstances presented, we exercise our inherent discretionary power to vacate judgments in situations that warrant vacatur but were not specifically codified in CPLR 5015 (a).

Accordingly, the order is reversed, and defendant’s motion, in effect, to vacate a default judgment and the underlying order granting plaintiff’s motion to enter a default judgment, and to [*2]dismiss the complaint is granted.

Rios, J.P., Pesce and Solomon, JJ, concur.
Decision Date: December 11, 2013