Summary
In Perricone v. City of New York, 62 N.Y.2d 661, 476 N.Y.S.2d 282, 464 N.E.2d 980 [1984], the Court of Appeals affirmed an order of the Appellate Division, Second Department which dismissed plaintiff's complaint for failure to timely move for a default judgment pursuant to the CPLR.
Summary of this case from Portfolio Recovery Assocs., LLC v. PloskiOpinion
Argued March 20, 1984
Decided May 1, 1984
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Irving Rader, J.
David S. Gould and Aaron J. Broder for appellant.
Frederick A.O. Schwarz, Jr., Corporation Counsel ( June A. Witterschein and Stephen J. McGrath of counsel), for City of New York, respondent.
Morgan Kennedy and Benjamin J. Sergi for John T. Brady Co., respondent.
A. Paul Goldblum for FMC Corporation, third-party defendant-respondent.
MEMORANDUM.
The appeal in the action against defendant John T. Brady and Co. should be dismissed, without costs, and the order of the Appellate Division should otherwise be affirmed, with costs.
Plaintiff does not, and cannot, seriously dispute that the Appellate Division's order, insofar as it denied his motions concerning his action against John T. Brady Co., is nonfinal. As a result, the appeal as against John T. Brady Co. must be dismissed. (See Powell v Gates-Chili Cent. School Dist., 41 N.Y.2d 827.)
As to the Appellate Division's dismissal of plaintiff's complaint against the City of New York for failure to move for entry of a default judgment, we find no legal error in that determination. CPLR 3215 (subd [c]) provides that if 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, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."
Plaintiff allegedly served his complaint upon defendant on May 17, 1971 and the city never answered. Notwithstanding that more than 10 years have elapsed since the action was allegedly commenced, the plaintiff has made no attempt to obtain entry of a default judgment. Having failed to comply with the statutory requirements, plaintiff's complaint was dismissed by the Appellate Division and we find no legal error in that decision. (See Chin v Hooker, 95 A.D.2d 790; Winkelman v H S Beer Soda Discounts, 91 A.D.2d 660.)
Plaintiff's argument that the city waived its right to move for dismissal of the complaint is unpersuasive inasmuch as the Appellate Division exercised its authority under CPLR 3215 (subd [c]) and dismissed the complaint on its own initiative. Nor can plaintiff be heard to complain that he had no notice that the Appellate Division intended to act pursuant to the statute and, therefore, had no opportunity to demonstrate sufficient cause why the complaint should not be dismissed. Plaintiff was aware for more than ten years that the city had not answered, yet failed to move for a default judgment. Furthermore, he never requested reargument at the Appellate Division or sought remittal by that court to Supreme Court to afford him an opportunity to supplement the record to show sufficient cause why the complaint should not be dismissed.
We have examined plaintiff's remaining arguments and find them to be without merit.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur in memorandum.
On the appeal as against defendant John T. Brady Co.: Appeal dismissed, without costs.
On the appeal as against the City of New York: Order affirmed, with costs.