Pro-Med Med., P.C. v Metropolitan Transp. Auth.

[*1] Pro-Med Med., P.C. v Metropolitan Transp. Auth. 2018 NY Slip Op 51817(U) Decided on December 7, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2016-2717 Q C

Pro-Med Medical, P.C., as Assignee of Merkhay Zavlunov, Respondent,

v

Metropolitan Transportation Authority, Appellant.

Jones Jones, LLP (Agnes Neiger of counsel), for appellant. Israel, Israel & Purdy, LLP (Jennifer Greenhalgh Howard and Scott Fisher of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered August 14, 2014. The order, insofar as appealed from, denied the branches of defendant's motion seeking to dismiss the complaint as abandoned, or, in the alternative, summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this action against the Metropolitan Transportation Authority (MTA) to recover assigned first-party no-fault benefits. Defendant's attorneys informed plaintiff's counsel by letter that they had been retained, and proposed in that letter that the parties enter into a stipulation providing for an extension of defendant's time to answer the complaint. Shortly thereafter, defendant served an answer. However, although the caption of the answer correctly stated that MTA is the defendant, the body of the answer stated that it was interposed on behalf of the New York City Transit Authority (NYCTA). Approximately five years after the answer was served, the MTA moved, pursuant to CPLR 3215 (c), to dismiss the complaint as abandoned, as plaintiff had not entered a default judgment within one year of the MTA's default, or, in the alternative, for leave to amend the answer to replace all references to the NYCTA with the MTA, and for, among other things, summary judgment dismissing the complaint. By order entered August 14, 2014, the Civil Court granted the branch of defendant's motion seeking to amend the answer and denied the remaining branches of the motion. Defendant appeals from so much of the order as denied those remaining branches.

CPLR 3215 (c) provides that if a "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 . . . unless sufficient cause is shown why the complaint should not be [*2]dismissed." However, a defendant's conduct may act as a waiver of any right which the defendant may have to the dismissal of the complaint under CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Cohen v Ryan, 34 AD2d 789 [1970]; Avir Surgical Supplies, Inc. v Windsor Group Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51452[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Here, where defendant's attorneys wrote a letter to plaintiff's counsel to propose an extension of defendant's time to answer the complaint, and subsequently served an answer, defendant has waived its right to dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore, 286 AD2d 416; Cohen, 34 AD2d at 790; see also Sobczynski v Chiari, 257 AD2d 565 [1999]). Furthermore, upon the record presented, defendant failed to demonstrate its entitlement to summary judgment dismissing the complaint, as defendant failed to make a prima facie showing that plaintiff had not submitted the bills at issue to defendant.

Accordingly, the order, insofar as appealed from, is affirmed.

WESTON, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 07, 2018