| Myoung Ja Kim v Wilson |
| 2017 NY Slip Op 03961 [150 AD3d 1019] |
| May 17, 2017 |
| Appellate Division, Second Department |
[*1]
| Myoung Ja Kim, Individually and as the Proposed Executrix ofHong Young Kim, Deceased, Respondent, v Kevin Wilson,Appellant. |
Montfort, Healy, McGuire & Salley, Garden City, NY (Michael A. Baranowicz, DonaldS. Neumann, Jr., and Jeffrey D. Present of counsel), for appellant.
Steven Louros, New York, NY, for respondent.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limitedby his brief, (1) from so much of an order of the Supreme Court, Queens County (Livote, J.),entered December 29, 2015, as denied that branch of his motion which was pursuant to CPLR3215 (c) to dismiss the complaint as abandoned, and (2) from so much of an order of the samecourt entered June 20, 2016, as, upon reargument and renewal, adhered to the originaldetermination.
Ordered that the appeal from the order entered December 29, 2015, is dismissed, as thatorder was superseded by the order entered June 20, 2016, made upon reargument and renewal;and it is further,
Ordered that the order entered June 20, 2016, is reversed insofar as appealed from, on thelaw, and, upon reargument and renewal, so much of the order entered December 29, 2015, asdenied that branch of the defendant's motion which was pursuant to CPLR 3215 (c) to dismissthe complaint as abandoned is vacated, and that branch of the defendant's motion is granted; andit is further,
Ordered that one bill of costs is awarded to the defendant.
In August 2010, the plaintiff commenced this action to recover damages for personal injuriesshe and her decedent allegedly sustained in a motor vehicle accident in August 2007. Thedefendant was personally served with the summons and complaint on December 6, 2010, but hefailed to appear or answer the complaint. In July 2015, the defendant moved, inter alia, pursuantto CPLR 3215 (c) to dismiss the complaint as abandoned. In an order entered December 29,2015, the Supreme Court denied that branch of the defendant's motion on the ground that theplaintiff's attorney had died in May 2015, and therefore, the proceeding was automatically stayedpursuant to CPLR 321 (c).
[*2] After the plaintiff'snew attorney appeared in the action, the defendant served an answer to the complaint, and thenmoved for leave to reargue and renew that branch of his prior motion which was pursuant toCPLR 3215 (c) to dismiss the complaint as abandoned. In an order entered June 20, 2016, theSupreme Court granted reargument and renewal, but adhered to its determination in the orderentered December 29, 2015.
CPLR 3215 (c) provides that "[i]f the plaintiff fails to take proceedings for the entry ofjudgment within one year after the default, the court shall not enter judgment but shall dismissthe complaint as abandoned . . . unless sufficient cause is shown why the complaintshould not be dismissed" (see WellsFargo Bank, N.A. v Bonanno, 146 AD3d 844 [2017]; Pipinias v J. Sackaris & Sons,Inc., 116 AD3d 749, 750 [2014]). "The language of CPLR 3215 (c) is not, in the firstinstance, discretionary, but mandatory, inasmuch as courts 'shall' dismiss claims (CPLR 3215 [c])for which default judgments are not sought within the requisite one-year period, as those claimsare then deemed abandoned" (Giglio vNTIMP, Inc., 86 AD3d 301, 307-308 [2011]; see HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671 [2016];Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 751). "Failure to take proceedingsfor entry of judgment may be excused, however, upon a showing of sufficient cause," whichrequires the plaintiff to "demonstrate that it had a reasonable excuse for the delay in takingproceedings for entry of a default judgment and that it has a potentially meritorious action" (Aurora Loan Servs., LLC v Hiyo, 130AD3d 763, 764 [2015]; see HSBC Bank USA, N.A. v Grella, 145 AD3d at 671;Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 750).
Here, the plaintiff failed to offer a reasonable excuse as to why she did not seek leave to entera default judgment. The death of the plaintiff's former attorney and the automatic stay of theproceeding (see CPLR 321 [c]) did not constitute a reasonable excuse, as the plaintiff'sformer attorney died in May 2015, almost 3
Contrary to the plaintiff's contention, the defendant's belated service of an answer after hisoriginal motion, inter alia, pursuant to CPLR 3215 (c) to dismiss the complaint as abandoned hadbeen denied, did not constitute a waiver of his right to seek dismissal of the complaint pursuantto CPLR 3215 (c) (see Rafiq v Weston, 171 AD2d at 784; cf. Myers v Slutsky,139 AD2d 709, 710 [1988]).
Accordingly, upon reargument and renewal, the Supreme Court should have granted thatbranch of the defendant's motion which was pursuant to CPLR 3215 (c) to dismiss the complaintas abandoned. Chambers, J.P., Austin, Roman and Barros, JJ., concur.