| Giordano v Berisha |
| 2007 NY Slip Op 09089 [45 AD3d 416] |
| November 20, 2007 |
| Appellate Division, First Department |
| A. Robert Giordano, as Coexecutor of Arnold A. Brenhouse,Deceased, Appellant, v Dervish Berisha, Respondent, et al.,Defendant. |
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Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered October 2, 2006,which granted plaintiff's motion to reargue a prior order, same court and Justice, entered on orabout May 22, 2006, insofar as it denied plaintiff's motion for a default judgment and dismissedthe complaint as against the individual defendant pursuant to CPLR 3215 (c), and, uponreargument, adhered to its prior determination denying the motion for a default judgment onother grounds, unanimously modified, on the law, the facts, and in the exercise of discretion, tothe extent of granting plaintiff leave to renew the motion for a default judgment upon properpapers, within 30 days of service of a copy of this order, and otherwise affirmed, without costs.Appeal from order entered on or about May 22, 2006, unanimously dismissed, without costs, assuperseded by the appeal from the order entered October 2, 2006.
The court initially denied plaintiff's motion for a default judgment and dismissed thecomplaint on the basis that the motion was not brought within one year after the individualdefendant's default (CPLR 3215 [c]). Upon reargument, the court determined that plaintiff'smotion was in fact timely, but denied the motion on the ground that plaintiff's submissions wereinsufficient to support entry of a default judgment pursuant to CPLR 3215 (f). This determinationwas correct inasmuch as plaintiff's motion papers, in this action where he is seeking moniesallegedly due under a contract the decedent was assigned for heating oil deliveries and servicesprovided to three buildings, failed to include the underlying contract and assignment, and theassignor's affidavit did not provide the particulars of the contract assigned to the decedent(see Feffer v Malpeso, 210 AD2d 60, 61 [1994]). However, under the circumstancespresented, where plaintiff has actively pursued a resolution to the matter, plaintiff is grantedleave to reapply [*2]for a default judgment, on proper papers, asindicated (Brown v Rosedale Nurseries, 259 AD2d 256, 257 [1999]).Concur—Lippman, P.J., Mazzarelli, Marlow, Catterson and Kavanagh, JJ.