| Jones v Fuentes |
| 2013 NY Slip Op 01239 [103 AD3d 853] |
| February 27, 2013 |
| Appellate Division, Second Department |
| Barbara Jones, Respondent, v Ramon A. Fuentes,Appellant. |
—[*1] Debra Hirsch, Cedarhurst, N.Y. (Jeffrey Hirsch of counsel), for respondent.
In an action to recover damages for personal injuries and injury to property, thedefendant appeals, as limited by his brief, from so much of an order of the SupremeCourt, Queens County (Markey, J.), entered March 23, 2012, as denied his motionpursuant to CPLR 3215 (c) to dismiss the complaint as abandoned.
Ordered that the order is affirmed insofar as appealed from, with costs.
CPLR 3215 (c) requires that a plaintiff commence proceedings for the entry of adefault judgment within one year after the default or demonstrate sufficient cause whythe complaint should not be dismissed. Where the plaintiff has made an application to thecourt for the entry of a default judgment within one year of the defendant's default, thecourt may not later dismiss the complaint as abandoned pursuant to CPLR 3215 (c) (see Nowicki v Sports WorldPromotions, 48 AD3d 435, 436 [2008]; Brown v Rosedale Nurseries,259 AD2d 256, 257 [1999]; Home Sav. of Am., F.A. v Gkanios, 230 AD2d 770,770-771 [1996]; Insurance Co. of N. Am. v Reifler, 45 AD2d 488, 489 [1974]).Here, the plaintiff's original motion for leave to enter a default judgment was made anddenied without prejudice within one year after the defendant's default. Furthermore,under the circumstances of this case, the plaintiff demonstrated that she did not abandonthe action (see Allstate Ins. Co.v Austin, 48 AD3d 720, 721 [2008]; Brown v Rosedale Nurseries, 259AD2d at 257; Insurance Co. of N. Am. v Reifler, 45 AD2d at 489-490; cf.Skeete v Bell, 292 AD2d 371 [2002]). Accordingly, the Supreme Court properlydenied the defendant's motion pursuant to CPLR 3215 (c) to dismiss the complaint asabandoned. Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.