Ann Radish v Edwin Rodriguez

Radish v Rodriguez 2006 NY Slip Op 05612 [31 AD3d 524] July 11, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

Ann Radish, Respondent,
v
Edwin Rodriguez, Jr., et al., Appellants.

—[*1]In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated September 14, 2005, which granted the plaintiff's motion for leave to enter judgment upon their default in answering, and denied their cross motion pursuant to CPLR 3215 (c) to dismiss the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the complaint is dismissed.

Given the plaintiff's failure to present evidence of a viable cause of action, the court should have denied the plaintiff's motion for leave to enter judgment upon the defendants' default (see CPLR 3215 [f]; Beaton v Transit Facility Corp., 14 AD3d 637 [2005]), and granted the defendants' cross motion to dismiss the complaint (see CPLR 3215 [c]; Piccirillo v Greenspan, 291 AD2d 486, 486-487 [2002]; Akler v Booth Mem. Med. Ctr., 257 AD2d 640, 641 [1999]). Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.