Opinion
No. 2013–1354 K C.
03-26-2015
EDISON MEDICAL SERVICES, P.C. as Assignee of Jesus DeLeon, Felix Espiritu, Cesar Pazos, Garry Perkins, Josefina Rosario and Denise Thomas, Respondent, v. CLARENDON NATIONAL INSURANCE COMPANY, Appellant.
Opinion
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered March 15, 2013. The order denied defendant's motion to vacate a default judgment and, upon vacatur, to dismiss the action pursuant to CPLR 3215(c).
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this action to recover assigned first-party no-fault benefits, and the summons and complaint were personally served upon defendant's authorized agent (see CPLR 311[a][1] ) on March 13, 2007. It is undisputed that defendant did not answer the complaint and, thus, defaulted in the action on April 2, 2007 by failing to appear within 20 days after service of the summons (CCA 402[a] ). In November 2007, which was within one year of defendant's default, plaintiff moved for leave to enter a default judgment. Defendant admitted receipt of the motion papers, which subsequently were rejected by the court. On April 17, 2008, plaintiff served a second motion for leave to enter a default judgment, and the Civil Court granted plaintiff's motion on default. A default judgment awarding plaintiff the principal sum of $3,392.13 was entered on November 28, 2011. In April 2012, defendant moved to vacate the judgment and, upon vacatur, to dismiss the action, pursuant to CPLR 3215(c), on the ground that plaintiff had failed to enter a default judgment within one year of defendant's default. By order entered March 15, 2013, the Civil Court denied defendant's motion, finding that defendant had failed to offer a reasonable excuse for not answering the complaint or a meritorious defense to the action.
CPLR 3215(c) requires that a plaintiff commence proceedings for the entry of a default judgment within one year after the default. Where a plaintiff has made an application to the court for the entry of a default judgment within that period, the court may not later dismiss the complaint as abandoned pursuant to CPLR 3215(c) (see U.S. Bank N.A. v. Poku, 118 AD3d 980 [2014] ; Jones v. Fuentes, 103 AD3d 853 [2013] ), even where, as here, the application was unsuccessful (see Brown v. Rosedale Nurseries, 259 A.D.2d 256 [1999] ). Furthermore, in the present case, as plaintiff filed the second motion for the entry of a default judgment, plaintiff demonstrated that it had not abandoned the action (see Jones, 103 AD3d 853 ; Brown, 259 A.D.2d 256 ; see also Icon Equip. Distribs. v. Gordon Envtl. & Mech. Corp., 272 A.D.2d 579 [2000] ; Patterson v. Patterson, 220 A.D.2d 731 [1995] ). Consequently, defendant was not entitled to dismissal of the complaint.
With respect to the branch of defendant's motion, pursuant to CPLR 5015(a), to vacate the default judgment, which was entered upon an order that granted plaintiff's unopposed motion, defendant was required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1] ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138 [1986] ). Defendant's sole excuse for failing to oppose plaintiff's motion for entry of a default judgment was its denial of receipt of plaintiff's motion, which excuse was insufficient to rebut the presumption of proper service that was raised by plaintiff's affidavit of service (see Kihl v. Pfeffer, 94 N.Y.2d 118 [1999] ; Engel v. Lichterman, 62 N.Y.2d 943 [1984] ; Ortega v. Trefz, 44 AD3d 916 [2007] ; Oparaji v. Citibank, N.A., 44 Misc.3d 25 [App Term, 2d, 11th & 13th Jud Dists 2014] ). In addition, defendant did not explain its failure to appear or answer the complaint, or demonstrate the existence of a potentially meritorious defense to the action (see Giraldo v. Weingarten, 81 AD3d 885 [2011] ). We further note that defendant failed to proffer any excuse for its five-month delay in moving to vacate the default judgment (see Bethune v. Prioleau, 82 AD3d 810 [2011] ). Accordingly, the order is affirmed.
WESTON, J.P., SOLOMON and ELLIOT, JJ., concur.