Perricone v. City of New York

62 N.Y.2d 661 (1984)

Frank Perricone, Appellant, v. City of New York, Respondent, and John T. Brady & Co., Respondent and Third-Party Plaintiff. FMC Corporation, Doing Business as Link Belt Division of FMC Corporation, Third-Party Defendant-Respondent.

Court of Appeals of the State of New York.

Argued March 20, 1984.

Decided May 1, 1984.

David S. Gould and Aaron J. Broder for appellant.

Frederick A. O. Schwarz, Jr., Corporation Counsel (June A. Witterschein and Stephen J. McGrath of counsel), for City of New York, respondent.

Morgan Kennedy and Benjamin J. Sergi for John T. Brady & Co., respondent.

A. Paul Goldblum for FMC Corporation, third-party defendant-respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur in memorandum.

*662MEMORANDUM.

The appeal in the action against defendant John T. Brady and Co. should be dismissed, without costs, and the order of the Appellate Division should otherwise be affirmed, with costs.

*663Plaintiff does not, and cannot, seriously dispute that the Appellate Division's order, insofar as it denied his motions concerning his action against John T. Brady & Co., is nonfinal. As a result, the appeal as against John T. Brady & Co. must be dismissed. (See Powell v Gates-Chili Cent. School Dist., 41 N.Y.2d 827.)

As to the Appellate Division's dismissal of plaintiff's complaint against the City of New York for failure to move for entry of a default judgment, we find no legal error in that determination. CPLR 3215 (subd [c]) provides that if the 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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

Plaintiff allegedly served his complaint upon defendant on May 17, 1971 and the city never answered. Notwithstanding that more than 10 years have elapsed since the action was allegedly commenced, the plaintiff has made no attempt to obtain entry of a default judgment. Having failed to comply with the statutory requirements, plaintiff's complaint was dismissed by the Appellate Division and we find no legal error in that decision. (See Chin v Hooker, 95 AD2d 790; Winkelman v H & S Beer & Soda Discounts, 91 AD2d 660.)

Plaintiff's argument that the city waived its right to move for dismissal of the complaint is unpersuasive inasmuch as the Appellate Division exercised its authority under CPLR 3215 (subd [c]) and dismissed the complaint on its own initiative. Nor can plaintiff be heard to complain that he had no notice that the Appellate Division intended to act pursuant to the statute and, therefore, had no opportunity to demonstrate sufficient cause why the complaint should not be dismissed. Plaintiff was aware for more than ten years that the city had not answered, yet failed to move for a default judgment. Furthermore, he never requested reargument at the Appellate Division or sought remittal by that court to Supreme Court to afford him an opportunity to supplement the record to show sufficient cause why the complaint should not be dismissed.

*664We have examined plaintiff's remaining arguments and find them to be without merit.

On the appeal as against defendant John T. Brady & Co.: Appeal dismissed, without costs.

On the appeal as against the City of New York: Order affirmed, with costs.