| Fuentes v Hoffman |
| 2014 NY Slip Op 04326 [118 AD3d 1324] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| Shana Fuentes, Appellant, v Keith A. Hoffman et al.,Defendants, and Mario Bevivino et al., Respondents. |
Athari & Associates, LLC, Utica (Nadia Arginteanu of counsel), forplaintiff-appellant.
Bailey, Kelleher & Johnson, P.C., Albany (Marc J. Kaim of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Oneida County (Patrick F. MacRae, J.),entered April 23, 2013. The order granted the motion of defendants Mario Bevivino andAntonia Bevivino to dismiss the complaint against them as abandoned.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action on October 17, 2011 seekingdamages for injuries she sustained as a result of her alleged exposure to lead-based paintas a child. Mario Bevivino and Antonia Bevivino (defendants) owned one of thepremises at which plaintiff claimed to have been exposed to lead-based paint, andplaintiff served defendants with the summons and complaint in this action on October 26,2011. Defendants never joined issue; instead, on January 13, 2013, they moved todismiss the complaint against them as abandoned (see CPLR 3215 [c]). SupremeCourt granted the motion, and we affirm.
"CPLR 3215 (c) provides that, '[i]f the plaintiff fails to take proceedings for the entryof judgment within one year after the [defendant's] default, the court shall. . . dismiss the complaint as abandoned . . . unless sufficientcause is shown why the complaint should not be dismissed' " (Zenzillo v Underwriters at Lloyd'sLondon, 78 AD3d 1540, 1541 [2010]; see Livingston v Livingston, 303AD2d 975, 975 [2003]). This Court has defined "sufficient cause" as evidence "that (1)the failure to seek a default judgment within one year after the default is excusable[,] and(2) the cause of action is meritorious" (Turner v Turner, 216 AD2d 910, 911[1995]; see Dobbins v County of Erie, 58 AD2d 733, 733 [1977]).
We reject at the outset plaintiff's contention that defendants were not in default, andthus that CPLR 3215 (c) does not apply. During oral argument on the motion, plaintiff'sattorney argued that she did not move for a default judgment because defendants werenot in fact in default inasmuch as plaintiff had granted them an extension of time inwhich to answer. Specifically, plaintiff's attorney asserted that it was her understandingthat another attorney at the [*2]law office that representedplaintiff had "verbally" made an "informal" stipulation with defendants' attorney toextend defendants' time to serve an answer. Plaintiff, however, failed to submit anyevidence of that alleged extension of time, and thus failed to establish that there was anyprocedural impediment to pursuing a default judgment against defendants.
Contrary to plaintiff's alternative contention, we conclude that the court properlydetermined that plaintiff's failure to seek a default judgment against defendants withinone year after the default is not excusable. "The determination of whether an excuse isreasonable in any given instance is committed to the sound discretion of the motioncourt" (Giglio v NTIMP,Inc., 86 AD3d 301, 308 [2011]; see Butindaro v Grinberg, 57 AD3d 932, 932-933 [2008]).Here, defendants are only two of the six defendants named in the complaint, and therecord reflects that plaintiff served discovery demands on other defendants in June 2012and filed a request for judicial intervention with respect to other defendants in August2012. By that time, plaintiff also had contacted at least two insurance companies toinvestigate whether defendants had insurance that would cover her claims for damages.In September 2012, plaintiff had contact with an attorney retained by defendants torepresent them. Defendants' attorney contacted plaintiff to advise of his representation,and plaintiff subsequently forwarded an electronic copy of the complaint to him. Thus,the record establishes that there was approximately 14 months between service of thecomplaint on defendants and defendants' motion to dismiss, during which time plaintiffhad minimal contact with defendants with respect to the case. Under those circumstances,we conclude that plaintiff failed to show "sufficient cause" why the complaint should notbe dismissed as abandoned (Zenzillo, 78 AD3d at 1541; see Livingston,303 AD2d at 975), and that the court did not err in granting the motion (see Ryant v Bullock, 77 AD3d811, 811-812 [2010]). Present—Scudder, P.J., Fahey, Lindley, Valentino andWhalen, JJ.