Progressive Direct Ins. Co. v Virgil

[*1] Progressive Direct Ins. Co. v Virgil 2010 NY Slip Op 51471(U) [28 Misc 3d 138(A)] Decided on August 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and IANNACCI, JJ
2009-1783 N C.

Progressive Direct Insurance Company as Subrogee of ZOE TAGUE, Appellant,

against

Jephthah Virgil, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered May 21, 2009. The order denied plaintiff's motion for leave to enter a default judgment and dismissed the complaint pursuant to CPLR 3215 (c).

ORDERED that the order is affirmed without costs.

In December 2007, plaintiff commenced this subrogation action to recover the
sum of $7,175.69, representing, among other things, medical expenses, lost wages and the cost of property repair arising out of an automobile accident. Defendant failed to appear or answer. In 2009, plaintiff moved for leave to enter a default judgment. By
order entered May 21, 2009, the District Court denied the motion and dismissed the complaint pursuant to CPLR 3215 (c). The instant appeal by plaintiff ensued.

When a plaintiff fails to commence proceedings for the entry of a default judgment within one year of the default, the court shall dismiss the action as abandoned unless sufficient cause is shown why the action should not be dismissed (see CPLR 3215 [c]; UDCA 1402). If the plaintiff demonstrates a reasonable excuse for the delay in timely moving for leave to enter a default judgment and a meritorious cause of action, the complaint will not be dismissed as abandoned (see County of Nassau v Chmela, 45 AD3d 722 [2007]).

In the case at bar, plaintiff did not move for leave to enter a default judgment within one year of the default and proffers as an excuse that there was a delay in its receipt of an affidavit from a health care provider setting forth that he had rendered $539.20 worth of chiropractic services in connection with injuries sustained in the accident. We are in agreement with the determination of the District Court that the proffered excuse is insufficient because the date on the health care provider's affidavit was well within a year of the default and, thus, plaintiff had ample time to timely make its motion. While, in its brief on appeal, plaintiff attempts to set forth in greater detail the nature of its excuse for the default, this court, in reviewing the propriety of the District Court's order, cannot consider these dehors-the-record allegations (see Chimarios v Duhl, 152 AD2d 508 [1989]; Jerome Ave. Condominium, Inc. v Ram, 25 Misc 3d 130[A], 2009 NY Slip Op 52116[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order is [*2]affirmed.

Nicolai, P.J., Tanenbaum and Iannacci, JJ., concur.
Decision Date: August 13, 2010