Opinion
2013-02-27
Barbara JONES, respondent, v. Ramon A. FUENTES, appellant.
McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for appellant. Debra Hirsch, Cedarhurst, N.Y. (Jeffrey Hirsch of counsel), for respondent.
McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for appellant. Debra Hirsch, Cedarhurst, N.Y. (Jeffrey Hirsch of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries and injury to property, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Markey, J.), entered March 23, 2012, as denied his motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned.
ORDERED that the order is affirmed insofar as appealed from, with costs.
CPLR 3215(c) requires that a plaintiff commence proceedings for the entry of a default judgment within one year after the default or demonstrate sufficient cause why the complaint should not be dismissed. Where the plaintiff has made an application to the court for the entry of a default judgment within one year of the defendant's default, the court may not later dismiss the complaint as abandoned pursuant to CPLR 3215(c) ( see Nowicki v. Sports World Promotions, 48 A.D.3d 435, 436, 851 N.Y.S.2d 270;Brown v. Rosedale Nurseries, 259 A.D.2d 256, 257, 686 N.Y.S.2d 22;Home Sav. of Am., F.A. v. Gkanios, 230 A.D.2d 770, 770–771, 646 N.Y.S.2d 530;Insurance Co. of N. Am. v. Reifler, 45 A.D.2d 488, 489, 359 N.Y.S.2d 820). Here, the plaintiff's original motion for leave to enter a default judgment was made and denied without prejudice within one year after the defendant's default. Furthermore, under the circumstances of this case, the plaintiff demonstrated that she did not abandon the action ( see Allstate Ins. Co. v. Austin, 48 A.D.3d 720, 721, 851 N.Y.S.2d 375;Brown v. Rosedale Nurseries, 259 A.D.2d at 257, 686 N.Y.S.2d 22;Insurance Co. of N. Am. v. Reifler, 45 A.D.2d at 489–490, 359 N.Y.S.2d 820;cf. Skeete v. Bell, 292 A.D.2d 371, 739 N.Y.S.2d 174). Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned.