| Baruch v Nassau County |
| 2015 NY Slip Op 08796 [134 AD3d 658] |
| December 2, 2015 |
| Appellate Division, Second Department |
[*1]
| Zakay Baruch, Appellant, v Nassau County etal., Defendants, and Village of Great Neck, Respondent. |
Sacco & Fillas, LLP, Astoria, N.Y. (Albert R. Matuza, Jr., of counsel), forappellant.
White, Cirrito & Nally, LLP, Hempstead, N.Y. (James P. Nally of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Sher, J.), entered April 22, 2014, whichdenied his motion for leave to enter judgment on the issue of liability against thedefendant Village of Great Neck upon that defendant's failure to appear or answer thecomplaint, and granted the cross motion of the defendant Village of Great Neck pursuantto CPLR 3215 (c) to dismiss the complaint insofar as asserted against it asabandoned.
Ordered that the order is affirmed, with costs.
In August 2012, the plaintiff commenced this action to recover damages for personalinjuries against, among others, the Village of Great Neck, alleging that he was injuredwhen he stepped on a defective manhole cover maintained by the Village, and it "flippedand went up on its side." The plaintiff served the Village with a summons and complainton August 13, 2012, and the Village did not appear or answer the complaint. InDecember 2013, more than one year after the Village's default, the plaintiff moved forleave to enter judgment on the issue of liability against the Village upon its failure toappear or answer the complaint. The Village cross-moved pursuant to CPLR 3215 (c) todismiss the complaint insofar as asserted against it as abandoned. In an order enteredApril 22, 2014, the Supreme Court denied the motion and granted the cross motion.
Pursuant to CPLR 3215 (c), "[i]f the plaintiff fails to take proceedings for the entryof judgment within one year after [a defendant's] default, the court shall not enterjudgment but shall dismiss the complaint as abandoned, . . . unlesssufficient cause is shown why the complaint should not be dismissed." "To establish'sufficient cause,' the party opposing dismissal must demonstrate that it had a reasonableexcuse for the delay in taking proceedings for entry of a default judgment and that it hasa potentially meritorious action" (Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764[2015]). " 'The determination of whether an excuse is reasonable in any giveninstance is committed to the sound discretion of the motion court' " (Pipinias v J. Sackaris & [*2]Sons, Inc., 116 AD3d 749, 752 [2014], quoting Giglio v NTIMP, Inc., 86AD3d 301, 308 [2011]).
Here, it is undisputed that the plaintiff failed to move for leave to enter judgmentwithin one year from the Village's default. Contrary to the plaintiff's contention, he failedto offer a reasonable excuse for his delay in so moving (see CPLR 3215 [c]). Theexcuse of law office failure proffered by the plaintiff was "vague, conclusory, andunsubstantiated" (Mattera vCapric, 54 AD3d 827, 828 [2008]; see Pipinias v J. Sackaris & Sons,Inc., 116 AD3d at 752; GMAC v Minewiser, 115 AD3d 707, 708 [2014]).Moreover, the plaintiff's claim of law office failure was refuted by a letter written by hiscounsel in October 2012, showing that the plaintiff's counsel was aware of the Village'sdefault at that time. Thus, the Supreme Court providently exercised its discretion indetermining that the plaintiff did not provide a reasonable excuse for his failure to seek adefault judgment within the one-year period.
The plaintiff's remaining contentions are without merit or need not be considered inlight of our determination.
Accordingly, the Supreme Court properly denied the plaintiff's motion for leave toenter judgment on the issue of liability against the Village upon its failure to appear oranswer the complaint and granted the Village's cross motion pursuant to CPLR 3215 (c)to dismiss the complaint insofar as asserted against it as abandoned. Mastro, J.P.,Leventhal, Roman and Barros, JJ., concur.