Six Star Supply, Inc. v Praetorian Ins. Co.

[*1] Six Star Supply, Inc. v Praetorian Ins. Co. 2013 NY Slip Op 50755(U) Decided on May 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-878 Q C.

SIX STAR SUPPLY, INC. as Assignee of RICHARD NANTON, Respondent,

against

Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered March 3, 2011. The order granted plaintiff's motion for leave to enter a default judgment against defendant unless defendant served and filed an answer within 30 days, and denied defendant's cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

ORDERED that the order is reversed, with $30 costs, plaintiff's motion for leave to enter a default judgment against defendant is denied and defendant's cross motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in October 2009. Defendant defaulted. More than a year later, plaintiff moved for leave to enter a default judgment against defendant, and defendant cross-moved to dismiss the complaint pursuant to CPLR 3215 (c). The Civil Court granted plaintiff's motion to the extent of directing defendant to serve and file an answer within 30 days, stating that, upon defendant's failure to comply, plaintiff would be permitted to enter judgment. The court denied defendant's cross motion.

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 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, we find that dismissal of the complaint was required pursuant to CPLR 3215 (c).

Accordingly, the order is reversed, plaintiff's motion is denied and defendant's cross motion is granted.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013