Garcia v City of New York

Garcia v City of New York 2010 NY Slip Op 02007 [71 AD3d 503] March 16, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

Alejo Garcia, Respondent,
v
City of New York et al., Defendants, and Lafayette-Morrison Housing Corporation, Appellant.

—[*1] Cartafalsa, Slattery, Turpin & Lenoff, New York (B. Jennifer Jaffee of counsel), for appellant.

Napoli Bern Ripka, LLP, New York (Denise A. Rubin of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 19, 2008, which, insofar as appealed from, in this action for personal injuries sustained in a trip and fall on a sidewalk, denied defendant Lafayette-Morrison Housing Corporation's cross motion pursuant to CPLR 3215 (c) to dismiss the complaint as against it, unanimously affirmed, without costs.

The cross motion was properly denied as plaintiff took proceedings for the entry of judgment within one year after the default, thereby rendering CPLR 3215 (c) inapplicable. The record shows that Lafayette was served with the summons and complaint via the Secretary of State on December 17, 2004 (see Business Corporation Law § 306), and thus, Lafayette's last day to answer was January 16, 2005 (CPLR 3012 [c]). Plaintiff first moved for a default judgment against Lafayette by notice of motion dated September 8, 2005, and continued to take such proceedings by notice of motion dated December 9, 2005, which was also within one year after the default (compare Butindaro v Grinberg, 57 AD3d 932 [2008]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624 [2005]). Plaintiff's repeated efforts to obtain a default judgment demonstrate that he had no intention of abandoning his claim. Concur—Tom, J.P., Sweeny, Catterson, Moskowitz and DeGrasse, JJ.