LIVINGSTON v. LIVINGSTON (2003)

Supreme Court, Appellate Division, Fourth Department, New York.

Yvonne S. LIVINGSTON, Plaintiff-Appellant, v. Kenneth H. LIVINGSTON, Defendant-Respondent.

Decided: March 21, 2003

PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, and HAYES, JJ.

Adair, Kaul, Murphy, Axelrod & Santoro, LLP, Rochester (Ryan B. Feeney of Counsel), for Plaintiff-Appellant. Phillips, Lytle, Hitchcock, Blaine & Huber LLP, Rochester (Jennifer A. Tumminelli of Counsel), for Defendant-Respondent.

Plaintiff failed to take proceedings for the entry of judgment within one year after defendant's default, and thus Supreme Court properly granted defendant's cross motion to dismiss the complaint as abandoned (see CPLR 3215 [c] ). In opposing the cross motion, plaintiff had to show “sufficient cause * * * why the complaint should not be dismissed” (id.), and she failed to do so. Contrary to the contention of plaintiff, her conclusory assertion in opposition to the cross motion that she was “simply and wholly without the financial, physical, medical and psychological resources to aggressively pursue” the action does not constitute sufficient cause (see e.g. Neuman v. Greenblatt, 260 A.D.2d 616, 617, 688 N.Y.S.2d 257; Smallridge v. Macalaster Bicknell Co. of N.Y., 134 A.D.2d 880, 881, 522 N.Y.S.2d 52). During the 2 1/2 years between the filing of the complaint and the filing of her motion for judgment, plaintiff gave no indication “that [she] did not intend to abandon the action” (Corbin v. Wood Pro Installers, 184 A.D.2d 234, 234, 586 N.Y.S.2d 746; cf. Micheli v. E.J. Bldrs., 268 A.D.2d 777, 779-780, 702 N.Y.S.2d 402).

It is hereby ORDERED that the amended order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM:

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