| GMAC v Minewiser |
| 2014 NY Slip Op 01581 [115 AD3d 707] |
| March 12, 2014 |
| Appellate Division, Second Department |
| GMAC, Respondent, v Raymond E. Minewiser,Appellant. |
—[*1] Paul R. Ades, PLLC, Babylon, N.Y., for respondent.
In an action to recover damages for breach of contract, the defendant appeals from ajudgment of the Supreme Court, Nassau County (Brandveen, J.), entered May 2, 2012,which, upon an order of the same court dated April 18, 2012, granting the plaintiff'smotion pursuant to CPLR 3215 for leave to enter a judgment against him upon his failureto appear or answer the complaint, is in favor of the plaintiff and against him in theprincipal sum of $21,766.19. The notice of appeal from the order dated April 18, 2012, isdeemed to be a notice of appeal from the judgment (see CPLR 5512 [a]).
Ordered that the judgment is reversed, on the law and in the exercise of discretion,with costs, the plaintiff's motion for leave to enter a default judgment pursuant to CPLR3215 is denied, the complaint is dismissed, and the order dated April 18, 2012, ismodified accordingly.
CPLR 3215 (c), entitled "Default not entered within one year," provides, in pertinentpart, that "[i]f the plaintiff fails to take proceedings for the entry of judgment within oneyear after the default, the court shall not enter judgment but shall dismiss the complaintas abandoned, without costs, upon its own initiative or on motion, unless sufficientcause is shown why the complaint should not be dismissed" (emphasis added). "Toavoid dismissal of the complaint as abandoned pursuant to CPLR 3215 (c), a plaintiffmust offer a reasonable excuse for his or her delay and must demonstrate that thecomplaint is meritorious" (London v Iceland Inc., 306 AD2d 517, 517 [2003]; see Scrimenti v Dry HarborNursing Home, 34 AD3d 439, 440 [2006]).
Here, contrary to the Supreme Court's conclusion, the plaintiff failed to offer areasonable excuse as to why it did not seek to enter a judgment against the defendantuntil nearly three years after his failure to answer or appear (see CPLR 3215 [c];Cynan Sheetmetal Prods., Inc. vB.R. Fries & Assoc., Inc., 83 AD3d 645, 646 [2011]; Mattera v Capric, 54 AD3d827 [2008]; Wayloo vSheikh, 2 AD3d 629, 630 [2003]). The excuse of law office failure proffered bythe plaintiff in its moving papers was "vague, conclusory, and unsubstantiated" and, thus,did not constitute a sufficient excuse for the plaintiff's extended delay in moving to entera default judgment after the defendant's default (Mattera v Capric, 54 AD3d at828; see Wayloo v Sheikh, 2 AD3d at 630; see also Lugauer v Forest [*2]CityRatner Co., 44 AD3d 829, 830 [2007]). Moreover, under the circumstances ofthis case, the court should not have considered the additional allegations regarding lawoffice failure which were submitted for the first time in the plaintiff's reply affirmation(see Murray v New York CityHealth & Hosps. Corp., 52 AD3d 792, 794 [2008]).
Accordingly, the plaintiff failed to demonstrate its entitlement to enter a defaultjudgment, and the complaint should have been dismissed as abandoned pursuant toCPLR 3215 (c). Mastro, J.P., Austin, Sgroi and Miller, JJ., concur.