| Cynan Sheetmetal Prods., Inc. v B.R. Fries & Assoc., Inc. |
| 2011 NY Slip Op 02832 [83 AD3d 645] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Cynan Sheetmetal Products, Inc., Appellant, v B.R. Fries &Associates, Inc., et al., Respondents. |
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In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr.,J.), dated January 29, 2010, as denied its motion for leave to enter judgment against thedefendants upon their defaults in appearing or answering the amended complaint and granted theapplication of the defendants B.R. Fries & Associates, Inc., Inter-County Mechanical Corp., andInternational Fidelity Insurance Company to dismiss the complaint insofar as asserted againstthem, in effect, pursuant to CPLR 3215 (c).
Ordered that on the Court's own motion, the notice of appeal from so much of the order asgranted the application of the defendants B.R. Fries & Associates, Inc., Inter-County MechanicalCorp., and International Fidelity Insurance Company is deemed to be an application for leave toappeal from that portion of the order, and leave to appeal is granted (see CPLR 5701 [c]);and it is further,
Ordered that the order is affirmed insofar as appealed from, with costs.
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]; Solano v Castro, 72 AD3d 932,933 [2010]; Kay Waterproofing Corp. vRay Realty Fulton, Inc., 23 AD3d 624 [2005]; Geraghty v Elmhurst Hosp. Ctr. ofN.Y. City Health & Hosps. Corp., 305 AD2d 634 [2003]). To avoid dismissal of thecomplaint as abandoned under such circumstances, a plaintiff must offer a reasonable excuse forthe delay in moving for leave to enter a default judgment, and must demonstrate a potentiallymeritorious cause of action (see Ryant vBullock, 77 AD3d 811 [2010]; 115-41 St. Albans Holding Corp. v Estate of Harrison, 71 AD3d653 [2010]; Sicurella v 111Chelsea, LLC, 67 AD3d 996 [2009]; London v Iceland Inc., 306 AD2d 517[2003]).
The plaintiff failed to offer a reasonable excuse for the more than four-year delay in [*2]moving for leave to enter judgment against the defendants upontheir defaults in appearing or answering the amended complaint. The plaintiff proffered theillness of its former attorney as an excuse for the delay. While a disabling illness may excuse anattorney's delay in making the motion, here, the defaults had occurred prior to the alleged onsetof Alzheimer's disease upon the plaintiff's former attorney (see Borgia v Interboro Gen.Hosp., 59 NY2d 802, 803 [1983]; Mattera v Capric, 54 AD3d 827, 828 [2008]; Berman vBrunswick Hosp. Ctr., 94 AD2d 736 [1983]). Furthermore, the plaintiff failed to submit anymedical proof documenting its former attorney's alleged illness (see Winslow v PyramidCo./Aviation Mall, 248 AD2d 922, 923 [1998]; Price v Salvo, 203 AD2d 349[1994]; Nieves v 331 E. 109th St. Corp., 112 AD2d 59, 61 [1985]).
The plaintiff's remaining contentions either need not be considered or are without merit.
Accordingly, the plaintiff's motion for leave to enter a default judgment against thedefendants was properly denied, and the Supreme Court properly granted the application of thedefendants B.R. Fries & Associates, Inc., Inter-County Mechanical Corp., and InternationalFidelity Insurance Company to dismiss the complaint insofar as asserted against them, in effect,pursuant to CPLR 3215 (c). Rivera, J.P., Florio, Dickerson, Hall and Roman, JJ., concur.