Opinion
13696/09
08-19-2011
Patricia M. Fisher, Plaintiff, v. Adam H. Revere and Tracey A. Revere, Defendant.
, J.
The following papers numbered 1 to _12_ read on this motion by plaintiff for an order pursuant to CPLR §3215[c] dismissing the plaintiff's complaint in the above captioned action upon the ground that the plaintiff has failed to take proceedings for entry of a default judgment within one year of the default. PAPERS NUMBERED
Notice of Motion - Affidavits-Exhibits..................................1 - 4
Affirmation in Opposition......................................................5 - 9
Reply Affirmation..................................................................10 - 12
Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Defendant moves for an order dismissing the Plaintiff's complaint, pursuant to CPLR §3215[c] upon the ground that the Plaintiff has failed to move for entry of a default judgment within one year of the default and to dismiss pursuant to CPLR §306-b for Plaintiff's failure to serve within 120 days is denied.
Background
On May 26, 2009, Plaintiff filed a Summons and Verified Complaint in the within action. According to the Affidavit of Service, the Summons and Complaint was served on the Defendants on September 29, 2009. Defendants' time to answer expired thirty days thereafter on October 30, 2009. To date, Plaintiff has failed to begin proceedings for the entry of a default judgment against the Defendants.
Plaintiff asserts that it attempted to serve the Summons and Complaint on June 2, 2009, however, the Defendants had recently moved. On September 19, 2009, after conducting a search, the Plaintiff attempted service upon the Defendants. After three failed attempts at service at Defendants residence, service was effectuated on September 29, 2009. Furthermore, Plaintiff contends that the parties were involved in settlement negotiations from the time service of the Summons and Complaint was effectuated.
Discussion
No motion for a default judgment was ever made, and the default is almost two years old. An action is deemed abandoned when a default has occurred and a plaintiff fails to seek a default judgment within one year after the default (see, CPLR §3215[c]; Geraghty v. Elmhurst Hosp. Ctr. of NY City Health & Hosps. Corp., 305 AD2d 634 [2d Dept. 2003]; Richards v. Lewis, 243 AD2d 615 [2d Dept. 1997]; Wayloo v. Sheikh, 2 AD3d 629 [2d Dept. 2003]; Skeete v. Bell, 292 AD2d 371 [2d Dept. 2002]).
To avoid dismissal of the complaint as abandoned under such circumstances, the plaintiff must offer a reasonable excuse for the delay in moving for a default judgment and demonstrate the merits of the complaint (see, Piccirillo v. Greenspan, 291 AD2d 486 [2d Dept. 2002]; Richards v. Lewis, 243 AD2d 615 [2d Dept. 1997]; Ingenito v. Grumman Corp., 192 AD2d 509, 510 [2d Dept. 1993]). The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court. (Giglio v. NTIMP, Inc., 926 N.Y.S.2d 546 [2nd Dept. June 14, 2011].)
In opposition, Plaintiff contends that after serving the defendants it received a response from GEICO and began settlement discussions. Plaintiff asserts that ongoing settlement discussions is a reasonable excuse for not moving for a default judgment. The Appellate Division, Second Department has concluded that "evidence of ongoing negotiations demonstrated that the plaintiffs had not abandoned the action." (Iorizzo v. Mattikow, 25 AD3d 762 [2nd Dept 2006].) In addition, the Appellate Division, Third Department upheld the denial of a motion to dismiss pursuant to CPLR §3215[c] where the parties were in engaged in settlement discussions during the one year period after the default. (Thompson v. Cohen, 160 AD2d 1157 [3rd Dept 1990].) Defendant, in reply, fails to dispute Plaintiff's contention that the parties were involved in settlement discussions for the over one year period preceding this motion. In addition, Plaintiff's verified complaint sets forth a meritorious cause of action. Accordingly, Defendant's motion to dismiss Plaintiff's complaint, pursuant to CPLR §3215[c] upon the ground that the plaintiff has failed to move for entry of a default judgment within one year of the default is denied.
Furthermore, Defendant contends that service was improperly effectuated more than 120 days after the filing of the Summons and Complaint.(CPLR §306-b.) Initially, the court notes that this area of relief was not requested in the Notice of Motion. However, "a court may grant relief that is warranted by the facts plainly appearing on the papers on both sides" despite the movants failure to formally and specifically request relief in the Notice of motion provided there is no misunderstanding or prejudice. (Blauman-Spindler v. Blauman, 68 AD3d 1105 [2nd Dept 2009] citing Frankel v. Stavsky, 40 AD3d 918 [2nd Dept 2007].) Plaintiff failed to object to the defect in the Notice of Motion and had a full and fair opportunity to oppose the motion on the merits. Accordingly, the court will entertain the portion of defendant's motion pursuant to CPLR §306-b.
As noted earlier, the Summons and Verified Complaint was filed on May 26, 2009, and after repeated attempts to locate the Defendants, service was finally made on September 29, 2009, three days after the 120 day period provided by CPLR §306-b. "The 120-day service provision of CPLR §306-b can be extended by a court, upon motion, upon good cause shown or in the interest of justice." (Bumpus v. New York City Transit Authority, 66 AD3d 26 [2nd Dept 2009].) " Good cause' and interest of justice' are two separate and independent statutory standards." (Id.) "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service." (Id.) Plaintiff set forth that it initially attempted service on June 2, 2009 . Plaintiff, after learning that defendants had moved, attempted service again on September 19, 2009, within the 120 day period. Accordingly, Plaintiff established reasonable diligence in attempting service.
"The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their determinations, may consider the presence or absence of diligence, along with other factors." (Id.) The relevant factors the court may consider are "the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant." (Id.) In the within action, the plaintiff has set forth a meritorious cause of action and the delay in service was merely three days after the 120 day period set forth in CPLR §306-b. Furthermore, Defendant failed to demonstrate the prejudice it suffered by the delay. Accordingly, Plaintiff has also established grounds to excuse its delay in the "interest of justice."
For the reasons set forth above, Defendants motion to dismiss pursuant to CPLR §3215[c] upon the ground that the Plaintiff has failed to move for entry of a default judgment within one year of the default and to dismiss pursuant to CPLR §306-b for Plaintiff's failure to serve within 120 days is denied.
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Bernice D. Siegal, J. S. C.