| County of Nassau v Chmela |
| 2007 NY Slip Op 09197 [45 AD3d 722] |
| November 20, 2007 |
| Appellate Division, Second Department |
| County of Nassau, Respondent, v Donald J. Chmela III,Appellant, et al., Defendants. |
—[*1] Lorna B. Goodman, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel), forrespondent.
In a civil forfeiture action, the defendant Donald J. Chmela III appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), enteredDecember 7, 2006, as denied that branch of his motion which was to dismiss the action asabandoned pursuant to CPLR 3215 (c).
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, without costs or disbursements, and that branch of the motion of the defendantDonald J. Chmela III which was to dismiss the action as abandoned is granted.
"When a plaintiff fails to seek leave to enter a default judgment within one year after thedefault has occurred, the action is deemed abandoned" (Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624,625 [2005]; see CPLR 3215 [c]). "To avoid dismissal of the complaint as abandonedunder such circumstances, a plaintiff must offer a reasonable excuse for the delay in moving forleave to enter a default judgment, and must demonstrate that the complaint is meritorious"(Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d at 625).
Here, the defendant Donald J. Chmela III (hereinafter the defendant) was in default as ofMarch 14, 2005. However, the plaintiff offered no excuse for its failure to take any action in[*2]this matter until May 5, 2006, over 13 months later, when itcontacted the defendant's former attorney in a related, but now concluded, criminal matter. Underthese circumstances, the Supreme Court improvidently exercised its discretion in finding therewas a sufficient excuse and in denying that branch of the defendant's motion which sought todismiss this matter as abandoned (seeCostello v Reilly, 36 AD3d 581 [2007]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624[2005]; see generally Miceli v StateFarm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648, 652-654 [2004]). Rivera,J.P., Krausman, Florio, Carni and Balkin, JJ., concur.