| Nowicki v Sports World Promotions |
| 2008 NY Slip Op 01124 [48 AD3d 435] |
| February 5, 2008 |
| Appellate Division, Second Department |
| John Nowicki, Appellant, v Sports World Promotions,Defendant, and Fred Davies, Respondent. |
—[*1] Rogers, Wughalter & Kaufman, Bronx, N.Y. (Julian S. Kaufman of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Kings County (Partnow, J.), dated November 14, 2006, whichgranted the motion of the defendant Fred Davies pursuant to CPLR 3215 (c) to vacate so much ofa default judgment of the same court dated August 4, 2005, as is in favor of the plaintiff andagainst him and to dismiss the complaint insofar as asserted against him as abandoned.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantFred Davies to vacate so much of the default judgment dated August 4, 2005 as is in favor of theplaintiff and against him and to dismiss the complaint insofar as asserted against him is denied.
The Supreme Court erred in granting the motion of the defendant Fred Davies to vacate somuch of a default judgment dated August 4, 2005, as is in favor of the plaintiff and against himand to dismiss the action insofar as asserted against him as abandoned. CPLR 3215 (c) requiresthat a plaintiff commence proceedings for the entry of a default judgment within one year ordemonstrate sufficient cause why the action should not be dismissed. Where application is madeto the court for the entry of a default judgment within one year of the defendant's default, thecourt may not refuse to enter judgment or dismiss the complaint as abandoned pursuant to CPLR3215 (c) (see Brown v Rosedale Nurseries, 259 AD2d 256, 257 [1999]; Home Sav. ofAm., F.A. v Gkanios, 230 AD2d [*2]770, 770-771 [1996];Insurance Co. of N. Am. v Reifler, 45 AD2d 488, 489 [1974]). In opposition to Davies'motion, the plaintiff contended that he submitted an application for a proposed clerk's judgmenton May 12, 2005, within one year of the default. Although the application itself was notsubmitted with the plaintiff's opposition to Davies' motion to vacate, the default judgment recitesthat it was entered upon the affirmation of the plaintiff's counsel dated May 5, 2005. While thereis some discrepancy as to the exact date of the application, both dates fall within one year ofDavies' default on June 9, 2004. Accordingly, the action was not subject to dismissal underCPLR 3215 (c).
Davies' remaining contentions are without merit. Fisher, J.P., Lifson, Covello and McCarthy,JJ., concur.