Ryant v Bullock

2010 NY Slip Op 07523 [77 AD3d 811]

October 19, 2010

Appellate Division, Second Department

As corrected through Wednesday, December 15, 2010

Ebonie Ryant, Appellant, v Shamel Bullock et al.,Respondents.

—[*1]John S. Wallenstein, Garden City, N.Y., for appellant. Boeggeman, George & Corde,P.C., White Plains, N.Y. (Cynthia Dolan of counsel), for respondents Shamel Bullock andAdrienne Bullock. Morenus, Conway, Goren & Brandman, Melville, N.Y. (Christopher M.Lochner of counsel), for respondents Georgina Thompson and Adir Rent A Car, Inc.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Queens County (Weinstein, J.), datedApril 24, 2009, as granted the motion of the defendants Shamel Bullock and Adrienne Bullockpursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against them, and grantedthat branch of the cross motion of the defendants Adir Rent A Car and Georgiana Thompson,which was pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

It is undisputed that the defendants defaulted in appearing or answering the complaint, andthat the plaintiff failed to move for leave to enter a default judgment against them within one yearafter the defaults. Therefore, the plaintiff was required to demonstrate a reasonable excuse for herdelay in seeking a default judgment, and a potentially meritorious cause of action, in order toavoid dismissal of the complaint as abandoned (see CPLR 3215 [c]; Solano v Castro, 72 AD3d 932,933 [2010]; 115-41 St. Albans HoldingCorp. v Estate of Harrison, 71 AD3d 653 [2010]; Butindaro v Grinberg, 57 AD3d 932 [2008]; Durr v New York Community Hosp.,43 AD3d 388 [2007]). The plaintiff's unsubstantiated excuse that the delay was occasionedby unspecified efforts to identify the defendants' insurance carriers was insufficient to excuse thedelay in seeking a default judgment (seeButindaro v Grinberg, 57 AD3d 932 [2008]; Mattera v Capric, 54 AD3d 827 [2008]; Durr v New York Community Hosp.,43 AD3d 388, 389 [2007]). Accordingly, the Supreme Court did not improvidently exerciseits discretion in granting the motion and that branch of the cross motion which were to dismissthe complaint pursuant to CPLR 3215 (c). Skelos, J.P., Santucci, Angiolillo, Hall and Roman,JJ., concur.