| Mattera v Capric |
| 2008 NY Slip Op 06968 [54 AD3d 827] |
| September 16, 2008 |
| Appellate Division, Second Department |
| Leigh R. Mattera, Respondent, v Iso R. Capric et al.,Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.),dated January 29, 2008, as, in effect, denied that branch of their cross motion pursuant to CPLR3215 (c) which was to dismiss the complaint as abandoned.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with costs, and that branch of the defendants' cross motion pursuant to CPLR 3215 (c)which was to dismiss the complaint 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 abandonedpursuant to CPLR 3215 (c), a plaintiff must offer a reasonable excuse for his or her delay andmust demonstrate that the complaint is meritorious" (London v Iceland Inc., 306 AD2d517 [2003]; see Scrimenti v Dry HarborNursing Home, 34 AD3d 439, 440 [2006]).
Here, the plaintiff failed to offer a reasonable excuse why she did not move for leave to enterjudgment against the defendants until nearly 3½ years after their default in answering orappearing (see CPLR 3215 [c]; Wayloo v Sheikh, 2 AD3d 629, 630 [2003]). The purported excusethat the plaintiff did not learn of her former attorney's failure to make a motion for leave to enterjudgment until a 2007 uninsured motorist arbitration hearing was held was insufficient since itwas supported solely by the affirmation of her current attorney, which was not based on personalknowledge (see Riverhead Bldg. Supply Corp. v Regine Starr, Inc., 249 AD2d 532[1998]). Moreover, the plaintiff's claim of law [*2]office failurecaused by her former attorney allegedly suffering a stroke in early 2007 was legally insufficient,not only because the alleged stroke occurred after the one-year statutory time period had expired(see Rafiq v Weston, 171 AD2d 783, 784 [1991]), but also because the purported excusewas vague, conclusory, and unsubstantiated (see Lugauer v Forest City Ratner Co., 44 AD3d 829, 830 [2007];Costello v Reilly, 36 AD3d 581[2007]; Opia v Chukwu, 278 AD2d 394 [2000]).
The plaintiff also failed to demonstrate the merits of her complaint. She did not submit anaffidavit of merit, and her attorney's affirmation was not based upon personal knowledge and didnot set forth sufficient evidentiary facts (see Oversby v Linde Div. of Union CarbideCorp., 121 AD2d 373 [1986]). Moreover, the verified complaint was insufficient since it wasverified by the plaintiff's former attorney rather than by the plaintiff herself (see Costello vReilly, 36 AD3d at 581-582).
Accordingly, the Supreme Court should have granted that branch of the defendants' crossmotion pursuant to CPLR 3215 (c) which was to dismiss the complaint as abandoned. Mastro,J.P., Dillon, Eng and Belen, JJ., concur.