| Butindaro v Grinberg |
| 2008 NY Slip Op 10574 [57 AD3d 932] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Anthony Butindaro, Respondent, v Mikhail Grinberg et al.,Defendants, and Michael Josovitz, Appellant. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York, N.Y. (Brian J. Isaac and Michael H. Zhu ofcounsel), for respondent.
In an action to recover damages for medical malpractice and wrongful death, the defendantMichael Josovitz appeals from an order of the Supreme Court, Kings County (Levine, J.), datedNovember 30, 2007, which, in effect, denied his motion pursuant to CPLR 3215 (c), or in thealternative, pursuant to CPLR 306-b and 3211 (a) (8), to dismiss the complaint insofar asasserted against him.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and that branch of the motion of the defendant Michael Josovitz which was pursuant to CPLR3215 (c) to dismiss the complaint insofar as asserted against him is granted.
The plaintiff commenced this action on December 8, 2005 seeking to recover damages formedical malpractice and wrongful death. Although the appellant doctor Michael Josovitz wasallegedly served with process on December 26, 2005 he defaulted in appearing or answering thecomplaint. However, the plaintiff took no steps to enter a default judgment against the appellant,and in October 2007 the appellant moved pursuant to CPLR 3215 (c), or in the alternative,pursuant to CPLR 306-b and 3211 (a) (8), to dismiss the complaint insofar as asserted againsthim as abandoned. The Supreme Court, in effect, denied the appellant's motion. We reverse.
Where, as here, a plaintiff fails to seek leave to enter a default judgment within one [*2]year after the default has occurred, the action is deemed abandoned(see CPLR 3215 [c]; DuBois v Roslyn Natl. Mtge. Corp., 52 AD3d 564, 565[2008]; County of Nassau v Chmela, 45 AD3d 722 [2007]; Kay Waterproofing Corp.v Ray Realty Fulton, Inc., 23 AD3d 624 [2005]). Thus, to avoid dismissal of the complaintagainst the appellant, the plaintiff was required to demonstrate both a reasonable excuse for hisdelay in seeking a default judgment and the existence of a meritorious cause of action (seeStaples v Jeff Hunt Devs., Inc., 56 AD3d 459 [2008]; DuBois v Roslyn Natl. Mtge.Corp., 52 AD3d at 565; County of Nassau v Chmela, 45 AD3d 722 [2007]; KayWaterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624 [2005]). Although thedetermination of what constitutes a reasonable excuse lies within the sound discretion of theSupreme Court, reversal is warranted if that discretion is improvidently exercised (see Staplesv Jeff Hunt Devs., Inc., 56 AD3d 459 [2008]; McHenry v Miguel, 54 AD3d 912[2008]). Here, the only excuse offered for the plaintiff's failure to make a timely motion for leaveto enter a default judgment was that his attorney had twice spoken "to the doctor's office" prior tothe expiration of the one year period, and been advised that the appellant was forwarding thecomplaint to his insurance carrier. These unsubstantiated allegations were insufficient to excusethe plaintiff's failure to seek a default judgment, which extended well beyond the expiration ofthe one-year period (see Staples v Jeff Hunt Devs., Inc., 56 AD3d 459 [2008];Mattera v Capric, 54 AD3d 827 [2008]; County of Nassau v Chmela, 45 AD3d722 [2007]; Durr v New York Community Hosp., 43 AD3d 388 [2007]). Furthermore,the plaintiff failed to demonstrate the existence of a meritorious cause of action against theappellant (see Durr v New York Community Hosp., 43 AD3d 388 [2007]; Williams vD'Angelo, 24 AD3d 538, 539 [2005]; Iazzetta v Vicenzi, 243 AD2d 540 [1997]).Under these circumstances, the Supreme Court should have granted that branch of the appellant'smotion which was pursuant to CPLR 3215 (c) to dismiss the complaint insofar as assertedagainst him as abandoned.
In light of our determination, we need not reach the appellant's contentions regardingalternative grounds for dismissal. Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ.,concur.