Sharebuilder Sec. Corp. v Naupari

[*1] Sharebuilder Sec. Corp. v Naupari 2013 NY Slip Op 52067(U) Decided on December 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2012-1163 Q C.

Sharebuilder Securities Corporation, Appellant,

against

Harold Naupari, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered November 22, 2011. The order denied plaintiff's motion for the entry of a default judgment and dismissed the complaint.

ORDERED that the order is modified by providing that the denial of plaintiff's motion for the entry of a default judgment is without prejudice to renewal of the motion within 30 days of the date of this decision and order upon proper papers; as so modified, the order is affirmed, without costs.

Plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for the entry of a default judgment and dismissed the complaint.

Plaintiff's August 2011 motion for the entry of a default judgment was properly denied, as the motion was not made within one year of the default and "sufficient cause" (CPLR 3215 [c]) was not shown for the delay. Contrary to plaintiff's contention, its service and filing of a prior motion for the entry of a default judgment, which motion plaintiff had withdrawn on the March 21, 2011 return date thereof, did not constitute the making of a motion. Moreover, defendant was in default as of January 19, 2010 (see CCA 402 [b]), as service had been completed on December 21, 2009 when proof of service had been filed (see CCA 410 [b]), not, as plaintiff [*2]contends, 10 days thereafter, as would be the case under CPLR 308 (2). Thus, even if the withdrawn motion had been served on January 31, 2011, as plaintiff contends on appeal (there is no proof of this in the record), the motion would have been untimely, as it was not made within one year after the January 19, 2010 default (see CPLR 3215 [c]).

However, as plaintiff may be able to establish a sufficient excuse for the delay and did not do so because it apparently believed it had made a motion for the entry of judgment within one year of the default, we modify the Civil Court's order by providing that the denial of the motion for the entry of judgment is without prejudice to renewal of the motion within 30 days of the date of this decision and order upon proper papers.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 09, 2013