Opinion
2002-00132
Submitted November 12, 2002.
December 9, 2002.
In an action to recover damages for personal injuries, the defendant Summit Entertainment Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Carter, J.), dated November 26, 2001, as denied its cross motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it and directed it to serve an answer.
Kenneth J. Weinstein, Garden City, N.Y. (Robert S. Sunshine of counsel), for appellant.
Brody, O'Connor O'Connor, Northport, N.Y. (Scott A. Brody and Patricia A. O'Connor of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed insofar as asserted against the appellant.
Where a defendant defaults in appearing or answering and a plaintiff fails to enter a judgment upon the default within one year thereof, the action is deemed abandoned (see CPLR 3215[c]). Under such circumstances, to avoid dismissal of the complaint, the plaintiff must offer a reasonable excuse for his or her delay and demonstrate the merits of the complaint (see CPLR 3215[c]; Piccirillo v. Greenspan, 291 A.D.2d 486). The plaintiff failed to proffer a reasonable excuse for his failure to seek leave to enter a judgment within one year after the defendant's default (see Opia v. Chukwu, 278 A.D.2d 394; Spadafora v. Home Depot, 287 A.D.2d 495). Accordingly, the Supreme Court should have granted the cross motion to dismiss the complaint insofar as asserted against the appellant.
FLORIO, J.P., FEUERSTEIN, McGINITY and SCHMIDT, JJ., concur.