Acupuncture Works, PC v New York City Tr.

[*1] Acupuncture Works, PC v New York City Tr. 2014 NY Slip Op 51513(U) Decided on October 22, 2014 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570527/14

Acupuncture Works, PC, a/a/o Wanda Hull, Plaintiff-Respondent, -

against

New York City Transit, Defendant-Appellant.

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about August 20, 2012, which denied its cross motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c).

Per Curiam.

Order (Raul Cruz, J.), entered on or about August 20, 2012, reversed, without costs, cross motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Where a plaintiff fails to move for entry of a default judgment within one year of a defendant's default in answering, dismissal of the underlying action as abandoned is required in the absence of a proper showing by plaintiff of a viable excuse for the delay and a meritorious cause of action (see CPLR 3215[c][court "shall" dismiss claims for which default judgments are not sought within the requisite one-year period]; Giglio v NTIMP, Inc., 86 AD3d 301, 308 [2011]; Hoppenfeld v Hoppenfeld, 220 AD2d 302, 303 [1995]). Here, the moving papers submitted by plaintiff in support of its untimely motion for a default judgment failed to address the reason(s) for its delay and plaintiff submitted no opposition papers in response to defendant's cross motion to dismiss the complaint as abandoned. In these circumstances, and giving proper effect to the mandatory language of CPLR 3215(c), the court was obliged to grant defendant's unopposed cross motion to dismiss.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: October 22, 2014