| Staples v Jeff Hunt Devs., Inc. |
| 2008 NY Slip Op 08475 [56 AD3d 459] |
| November 5, 2008 |
| Appellate Division, Second Department |
| William L. Staples, Respondent, v Jeff Hunt Developers,Inc., Appellant, et al., Defendants. |
—[*1] Marschhausen & Fitzpatrick, P.C., Garden City, N.Y. (Kevin P. Fitzpatrick of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Jeff Hunt Developers, Inc., appeals froman order of the Supreme Court, Dutchess County (Pagones, J.), dated September 19, 2007, whichdenied that branch of its motion to dismiss the complaint on the ground that the plaintiff failed toseek a default judgment within one year of its default in answering pursuant to CPLR 3215 (c),and granted the plaintiff's cross motion for leave to enter a default judgment.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,that branch of the defendant's motion which was to dismiss the complaint is granted, and theplaintiff's cross motion is denied.
It is uncontroverted that the plaintiff failed to move for leave to enter a default judgmentwithin one year after the defendant defaulted in answering the complaint (see CPLR 3215[c]). Accordingly, in order to avoid the dismissal of the complaint as abandoned, he was requiredto demonstrate a reasonable excuse for his delay in seeking a default judgment and a meritoriouscause of action (see DuBois v RoslynNatl. Mtge. Corp., 52 AD3d 564 [2008]; County of Nassau v Chmela, 45 AD3d 722 [2007]; Durr v New York Community Hosp.,43 AD3d 388 [2007]; Costellov Reilly, 36 AD3d 581 [2007]). Although the [*2]determination of what constitutes a reasonable excuse lies withinthe sound discretion of the trial court, reversal is warranted if that discretion is improvidentlyexercised (see McHenry v Miguel,54 AD3d 912 [2008]; Thompson vSteuben Realty Corp., 18 AD3d 864 [2005]; London v Iceland Inc., 306 AD2d517 [2003]). Here, the plaintiff's bald and unsubstantiated claim of law office failure wasinsufficient to explain the five-year delay in moving for leave to enter a default judgment (see Costello v Reilly, 36 AD3d581 [2007]; Mattera v Capric,54 AD3d 827 [2008]). Accordingly, the Supreme Court improvidently exercised itsdiscretion in denying that branch of the defendant's motion which was to dismiss the complaintas abandoned and in granting the plaintiff's cross motion for leave to enter a default judgment.Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ., concur.