| Solano v Castro |
| 2010 NY Slip Op 03305 [72 AD3d 932] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Jose Solano, Respondent, v Andrew Castro, Appellant, etal., Defendants. (And a Third-Party Action.) |
—[*1]
In an action to recover damages for personal injuries, the defendant Andrew Castro appealsfrom an order of the Supreme Court, Dutchess County (Sproat, J.), dated November 25, 2008,which granted the plaintiff's motion pursuant to CPLR 3215 to the extent of directing him toserve a late answer and denied his cross motion to sever the third-party action from the mainaction.
Ordered that the order is modified, on the law, by deleting the provision thereof granting theplaintiff's motion pursuant to CPLR 3215 to the extent of directing the defendant Andrew Castroto serve a late answer, and substituting therefor provisions denying the plaintiff's motion in itsentirety and dismissing the complaint insofar as asserted against the defendant Andrew Castro;as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
When a plaintiff fails to seek leave to enter a default judgment within one year after thedefault has occurred, the action is deemed abandoned (see CPLR 3215 [c]; Butindaro v Grinberg, 57 AD3d932 [2008]; County of Nassau vChmela, 45 AD3d 722 [2007]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624,625 [2005]). To avoid dismissal of the complaint pursuant to CPLR 3215 (c) insofar as assertedagainst the defendant Andrew Castro (hereinafter the appellant), the plaintiff was required todemonstrate both a reasonable excuse for his delay in seeking a default judgment and that thecomplaint was meritorious (see Shinn vCity of New York, 65 AD3d 621, 622-623 [2009]; Butindaro v Grinberg, 57 AD3d 932 [2008]; Staples v Jeff Hunt Devs., Inc., 56AD3d 459 [2008]; Mattera vCapric, 54 AD3d 827, 828 [2008]). Here, the plaintiff failed to demonstrate that hiscomplaint had merit. He did not submit an affidavit of merit, and the verified complaint wasinsufficient, since it was verified by his attorney rather than by the plaintiff himself (seeMattera v Capric, 54 AD3d at 828; Costello v Reilly, 36 AD3d 581, 581-582 [2007]). Accordingly,the Supreme Court should have denied the plaintiff's motion in its entirety and dismissed thecomplaint insofar as asserted against the appellant as abandoned (see [*2]Perricone v City of New York, 62 NY2d 661, 663 [1984]).
The Supreme Court providently exercised its discretion in denying the appellant's crossmotion to sever the third-party action from the main action (see CPLR 603, 1010). Theappellant cannot claim prejudice by the delay in the commencement of the third-party action,since the main action has been taken off the trial calendar and the appellant was afforded anopportunity to conduct his discovery in the third-party action (see Jones v Board of Educ. ofCity of N.Y., 292 AD2d 500, 501 [2002]; Annanquartey v Passeser, 260 AD2d 517,518 [1999]; cf. Cusano v Sankyo Seiki Mfg. Co., 184 AD2d 489 [1992]). Furthermore,the plaintiff in the main action opposed the cross motion and did not claim any prejudice by thedelay (see Annanquartey v Passeser, 260 AD2d 517 [1999]; Musco v Conte, 22AD2d 121, 126 [1964]; cf. Abreo vBaez, 29 AD3d 833, 834 [2006]). Dillon, J.P., Miller, Balkin, Leventhal and Austin, JJ.,concur.