Opinion
2002-04509, 2002-08262
Argued June 6, 2003.
July 3, 2003.
In a shareholder derivative action, the plaintiffs appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Nassau County (O'Connell, J.), dated April 17, 2002, as granted the motion of the defendants Iceland Incorporated, Jacqueline Haenel, Stephen J. Haenel, and Stephan B. Gleich pursuant to CPLR 3215(c) to dismiss the complaint as abandoned insofar as asserted against them, and (2), a judgment of the same court entered July 15, 2002, upon the order, as dismissed the complaint insofar as asserted against the defendants Iceland Incorporated, Jacqueline Haenel, Stephen J. Haenel, and Stephan B. Gleich.
Shaw, Licitra, Bohner, Esernio, Schwartz Pfluger, P.C., Garden City, N.Y. (Frank J. Livoti and Roberta Clark of counsel), for appellants.
Gleich, Siegel Farkas, Great Neck, N.Y. (Lawrence W. Farkas of counsel), for respondents.
Bryan Cave, LLP, New York, N.Y. (Noah Weissman and Jennifer Sobol of counsel), for defendant State Bank of Long Island.
Before: FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1]).
To avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c), a plaintiff must offer a reasonable excuse for his or her delay and must demonstrate that the complaint is meritorious ( see Turnbull v. Summit Entertainment Corp., 300 A.D.2d 392; Piccirillo v. Greenspan, 291 A.D.2d 486; Williams v. Colonial Tr., 275 A.D.2d 368; Riggi v. Sommerville, 273 A.D.2d 290). The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court ( see Matter of Gambardella v. Ortov Light., 278 A.D.2d 494; Parker v. City of New York, 272 A.D.2d 310; De Vito v. Marine Midland Bank, 100 A.D.2d 530). The Supreme Court providently exercised its discretion in granting the motion to dismiss in light of the plaintiffs' failure to provide a reasonable excuse for the delay in seeking a default judgment.
SANTUCCI, J.P., SCHMIDT, COZIER and RIVERA, JJ., concur.