Opinion
2019-05330 Index No. 703124/16
07-01-2020
16501 JAMAICA AVENUE, LLC, Respondent, v. Jack HARA, Appellant.
Kenneth M. Lieblich, New York, NY, for appellant. Gutman, Mintz, Baker & Sonnenfeldt LLP, New Hyde Park, N.Y. (Michael DiGiaro of counsel), for respondent.
Kenneth M. Lieblich, New York, NY, for appellant.
Gutman, Mintz, Baker & Sonnenfeldt LLP, New Hyde Park, N.Y. (Michael DiGiaro of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J. REINALDO E. RIVERA SHERI S. ROMAN JEFFREY A. COHEN, JJ.
DECISION & ORDER In an action, inter alia, to recover on a personal guaranty, the defendant appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered March 21, 2019. The order granted the plaintiff's motion for leave to amend the complaint and denied the defendant's cross motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for leave to amend the complaint is denied, and the defendant's cross motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned is granted.
In March 2016, the plaintiff commenced this action, inter alia, to recover on a personal guaranty. The defendant failed to timely appear or answer the complaint. In October 2018, the plaintiff moved for leave to amend the complaint. Thereafter, the defendant cross-moved pursuant to CPLR 3215(c) to dismiss the complaint as abandoned. In an order entered March 21, 2019, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. The defendant appeals.
CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned ... unless sufficient cause is shown why the complaint should not be dismissed" (see HSBC Bank USA, N.A. v. Slone, 174 A.D.3d 866, 867, 106 N.Y.S.3d 392 ; Ixis Real Estate Capital, Inc. v. Herbst, 170 A.D.3d 691, 691–692, 95 N.Y.S.3d 297 ; Myoung Ja Kim v. Wilson, 150 A.D.3d 1019, 1020, 55 N.Y.S.3d 334 ). "The language of CPLR 3215(c) is not, in the first instance, 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 claims are then deemed abandoned" ( Giglio v. NTIMP, Inc., 86 A.D.3d 301, 307–308, 926 N.Y.S.2d 546 ; see HSBC Bank USA, N.A. v. Slone, 174 A.D.3d at 867, 106 N.Y.S.3d 392 ; Myoung Ja Kim v. Wilson, 150 A.D.3d at 1020, 55 N.Y.S.3d 334 ). "Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause," which requires the plaintiff to "demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action" ( Aurora Loan Servs., LLC v. Hiyo, 130 A.D.3d 763, 764, 13 N.Y.S.3d 554 ; see Myoung Ja Kim v. Wilson, 150 A.D.3d at 1020, 55 N.Y.S.3d 334 ).
Here, the plaintiff failed to offer a reasonable excuse as to why it did not seek leave to enter a default judgment within one year following the defendant's default (see Myoung Ja Kim v. Wilson, 150 A.D.3d at 1020, 55 N.Y.S.3d 334 ). Accordingly, the Supreme Court should have granted the defendant's cross motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned and denied the plaintiff's motion for leave to amend the complaint.
Clerk of the Court
SCHEINKMAN, P.J., RIVERA, ROMAN and COHEN, JJ., concur.