Vaiselberg v Duarte

[*1] Vaiselberg v Duarte 2005 NY Slip Op 51102(U) Decided on July 13, 2005 Supreme Court, Kings County Rivera, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2005
Supreme Court, Kings County

Bernard Vaiselberg & ROCHELLE VAISELBERG, Plaintiffs,

against

Duarte A. Duarte & MAYERLIN GARCIA, Defendants.



16542/02

Francois A. Rivera, J.

Defendants Duarte A. Duarte and Mayerlin Garcia move pursuant to CPLR §3215 (c)

to dismiss plaintiffs Bernard and Rochelle Vaiselberg's cause of action based on abandonment. Plaintiffs oppose the motion and cross-move for sanctions pursuant to 22 NYCRR §130-1.1 contending that defendants' motion is frivolous.

On April 26, 2002, plaintiffs commenced this action by filing a summons with notice with the Kings County Clerk's office. The notice advised that the nature of the action was a claim for personal injuries sustained by Bernard Vaiselberg and a loss of consortium claim by his wife, Rochelle Vaiselberg. It further advised that on May 19, 1999, at the intersection of Bedford Avenue and Lynch Street in Brooklyn, Bernard Vaiselberg was struck by an automobile operated by Duarte A. Duarte and owned by Mayerlin Garcia.

On January 14, 2005, defendants filed the instant motion. Defendants concede that in 2002, they defaulted on the underlying action. They contend that the court should dismiss plaintiffs' complaint as abandoned pursuant to CPLR §3215 (c), because plaintiffs did not move for a default judgment within one year after the defendants' default. Plaintiffs conceded that they did not move for a default judgment within one year after the defendants' default. They contend, however, that their conduct since defendants' default demonstrates

their continued prosecution of the case.

CPLR 3215(c) pertains to a default not entered within one year and provides: If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action.

Plaintiffs' affidavit in opposition to the motion and annexed exhibits establish that from July 1999 through June 2004, their counsel endeavored to determine the identity of the insurer [*2]and the existence of insurance coverage for the defendants' vehicle. On March 8, 2004, plaintiffs made a demand for arbitration with GE Auto Insurance Program from an uninsured/underinsured motorist endorsement. At the time of the accident, One Beacon Insurance Company was the insurer of defendant Mayerlin Garcia's vehicle. On June 22, 2004, One Beacon Insurance Company conceded coverage and entered into settlement discussions with plaintiffs' counsel. Plaintiffs assert these aforementioned ongoing efforts demonstrate

that they have actively prosecuted their claims against defendants and prove that they had no intent to abandon the matter.

Pursuant to CPLR §304 an action is commenced by filing a summons and complaint

or summons with notice. If the complaint is not served with the summons, CPLR § 305(b) provides that the summons should contain or have attached, a notice stating the nature of the action and the relief sought, and the sum of money for which judgment may be taken in the

case of default. In the case at bar, plaintiffs' summons with notice meets the requirements of CPLR 305 (b). In accordance with CPLR §306(b) plaintiffs had to serve defendants with the summons with notice within 120 days of April 26, 2002, the date of commencement of the action. Pursuant to CPLR §320 (a), defendants had twenty days to appear from the date they were served with plaintiffs' summons with notice. A defendant can appear by serving a

notice of appearance, serving an answer; or making a motion which has the effect of

extending the time to answer (Parsons v. Parsons, 6 Misc 3d 1032(a) [NY Sup.2005]; see

also [Siegel, New York Practice §110 {4th Ed.}]). Defendants neither admit nor dispute timely service upon them of the summons with notice. There is no dispute that defendants did not appear in the action by any of the methods specified above. It is noted that pursuant to CPLR §3215(c) the filing of the instant motion does not constitute an appearance by the defendants

in this action. Despite the defendants' default, plaintiffs' never moved for a default judgment.

Once the defendant defaults, plaintiff has one year from the time of default to take proceedings for the entry of judgment. If plaintiff fails to do so the court will dismiss the case as

abandoned unless sufficient cause is shown for the court to do otherwise. The defendants should have appeared at the latest by September 16, 2002, assuming plaintiff served the defendants exactly one hundred and twenty days after April 26, 2002. Although plaintiffs provided the court with the affidavits of service of the summons with notice upon each of the defendants, the court need not and does not rely on same for purposes of deciding this motion. As of the date of the instant motion, plaintiffs did not take proceedings for the entry of a default judgment against the defendants.

As a result, the burden shifts to the plaintiffs to show sufficient cause for the delay and demonstrate the merits of the complaint (State Farm Mut. Auto Ins. Co. v. Rodriguez,

12 AD3d 662 [2nd Dept. 2004]; see also Greenpoint Bank v. Ginyard, 253 AD2d 451

[2nd Dept. 1998]). Plaintiffs contend it would have been fruitless to take any court proceedings before June 4, 2004 because it was not until then that One Beacon Insurance Company

conceded coverage for the offending vehicle. Nevertheless, up until this date plaintiffs were attempting to verify and determine who defendants' insurer was. Forbearance by plaintiffs

to allow insurance carrier time to investigate the accident and confusion over whether [*3]

defendants were insured by one or two companies has been held to be a sufficient cause for delay (State Farm Mut. Auto Ins. Co. v. Rodriguez, 12 AD3d 662 [2nd Dept. 2004]; see also Ingenito v. Grumman, 192 AD2d 509, 510-11 [2nd Dept. 1993]). Identifying defendant

Garcia's insurer may fairly be viewed as a critical fact which may justify or explain plaintiffs' delay in seeking a default judgment against the defendants.

Plaintiffs have provided this court with copies of correspondence with One Beacon Insurance Company for the past two years. Even though it was a long delay, plaintiffs have provided ample explanation for such delay. They have also submitted evidence of the merits of their complaint by providing an affidavit of merit made by Benrnard Vaiselberg (Ingenito v. Grumman, 192 AD2d 509, 510-11 [2nd Dept. 1993]). Furthermore, judicial policy favors resolution of disputes on the merits (Grant v. City of New York, 17 AD3d 215 [1st Dept. 2005]; see also Colucci v. Jennifer Convertibles, Inc., 283 AD2d 224 [1st Dept. 2001]). The Court, therefore, finds that plaintiffs' efforts for the past two years in determining defendants'

insurer are held to be a sufficient cause for delay. Defendants' motion for dismissal of

plaintiffs' complaint due to abandonment is denied. Defendants have twenty days to appear in

the action in a manner as set forth in CPLR §320(a).

Plaintiffs' motion for sanctions is also denied. In order to impose sanctions, the court must find that defendants' motion is without legal merit and undertaken primarily to

delay or prolong litigation (Jason v. Dumel, 3 Misc 3d 1101 [Kings County 2004]). The motion is based on CPLR §3215 and thus can not be considered frivolous.

The foregoing constitutes the decision and order of this court.

Dated: July 13, 2005x

J.S.C.