| Zenzillo v Underwriters at Lloyd's London |
| 2010 NY Slip Op 08204 [78 AD3d 1540] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| Janine Zenzillo, Doing Business as Auto Dimensions Plus,Respondent, v Underwriters at Lloyd's London, Appellant. |
—[*1] George F. Aney, Herkimer, Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan ofcounsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Oneida County (Bernadette T. Romano, J.), enteredJuly 9, 2009. The order, insofar as appealed from, denied the motion of defendant to dismiss thecomplaint or vacate the note of issue.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking the amount allegedly owed pursuant to aninsurance policy issued to plaintiff by defendant. On June 1, 2006, the parties' counsel stipulated to anindefinite extension of time for defendant to answer the complaint. By letter dated January 19, 2007,plaintiff's counsel requested that defendant answer the complaint so that plaintiff could prosecute theaction. Defendant never did so but, on February 3, 2009, it moved to dismiss the complaint pursuantto, inter alia, CPLR 3215 (c). Supreme Court erred in denying the motion on that ground. CPLR 3215(c) provides that, "[i]f the plaintiff fails to take proceedings for the entry of judgment within one yearafter the [defendant's] default, the court shall . . . dismiss the complaint as abandoned. . . unless sufficient cause is shown why the complaint should not be dismissed" (seeLivingston v Livingston, 303 AD2d 975 [2003]). In opposition to the motion, plaintiff included anaffirmation from plaintiff's counsel, who agreed that the January 19, 2007 letter terminated thestipulation extending defendant's time to answer. Defendant therefore defaulted 20 days after January19, 2007 by failing to appear in the action (see CPLR 320 [a]), and plaintiff failed todemonstrate sufficient cause why the complaint should not be dismissed (see CPLR 3215 [c]).Present—Scudder, P.J., Martoche, Centra, Fahey and Green, JJ.