United Custom Made Furniture v Jerry Fishkin

United Custom Made Furniture v Fishkin 2004 NY Slip Op 00653 [4 AD3d 412] February 9, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 21, 2004

United Custom Made Furniture, Inc., Appellant,
v
Jerry Fishkin et al., Respondents.

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In an action, inter alia, to recover damages for injury to property, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated May 2, 2002, which denied its motion for leave to enter judgment against the defendants upon their default in appearing and answering and granted the cross motion of the defendants Angelo Tomasi and Al Italia Construction to dismiss the complaint insofar as asserted against them pursuant to CPLR 3215 (c).

Ordered that the order is affirmed, without costs or disbursements.

It is undisputed that the plaintiff failed to move for leave to enter judgment within one year after the defendants' alleged default in appearing or answering, as required by CPLR 3215 (c). Under the circumstances of this case, the claimed law office failure on the part of the plaintiff's attorney was insufficient to excuse the untimely motion or to demonstrate why the complaint should not be dismissed (see Opia v Chukwu, 278 AD2d 394 [2000]). Accordingly, the Supreme Court properly exercised its discretion in denying the motion and in granting the cross motion of the defendants Angelo Tomasi and Al Italia Construction to dismiss the complaint insofar as asserted against them pursuant to CPLR 3215 (c). Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.