Seide v Calderon

Seide v Calderon 2015 NY Slip Op 01744 Decided on March 3, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 3, 2015
Tom, J.P., Friedman, Renwick, Manzanet-Daniels, Feinman, JJ.
14386 350464/10

[*1] Marie Carole Seide, et al., Plaintiffs-Appellants,

v

Alberto Calderon, et al., Defendants-Respondents.

Law Offices of Laurence Jeffrey Weingard, New York (Mitchell F. Senft of counsel), for appellants.

Law Office of John Trop, Yonkers (David Holmes of counsel), for respondent.

Appeal from order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 3, 2013, which denied plaintiffs' motion for a default judgment against defendants, and granted defendants' cross motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c), deemed appeal from judgment, same court and Justice, entered February 7, 2014, and, so considered, the judgment unanimously affirmed, without costs.

We exercise our discretion under CPLR 5520(c) to deem the appeal from the order as taken from the subsequent judgment, because the relief granted by the judgment is identical to that granted in the order (see Gutman v Savas, 17 AD3d 278, 278-279 [1st Dept 2005]).

The motion court providently exercised its discretion in dismissing the complaint as abandoned, because plaintiffs failed to demonstrate a reasonable excuse for waiting over a year after the expiration of the one-year limitation period before moving for a default judgment (see CPLR 3215[c]; Diaz v Perez, 113 AD3d 421, 422 [1st Dept 2014]). Plaintiffs' unsubstantiated excuses are insufficient (see Butindaro v Grinberg, 57 AD3d 932, 933 [2d Dept 2008]; Brodmerkel v James McCullagh Co., Inc., 46 AD3d 853, 853 [2d Dept 2007], lv dismissed 10 NY3d 821 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2015

CLERK