CABRAL v. Nathalie Vasquez, Defendant. (2025)

Order, Supreme Court, Bronx County (Bianka Perez, J.), entered on or about September 14, 2023, which denied plaintiff's motion for a default judgment against defendant Gregory Reyes Mueses and sua sponte dismissed the complaint against him under CPLR 3215(c), unanimously affirmed, without costs.

The part of the order which sua sponte dismissed the complaint is not appealable as of right (see CPLR 5701[a][2];  Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003];  231st Riverdale LLC v. 7 Star Home Furniture Inc., 198 A.D.3d 524, 525, 152 N.Y.S.3d 820 [1st Dept. 2021]).  However, under the circumstances here, we deem the notice of appeal to be a motion for leave to appeal, and grant such leave (see 231st Riverdale LLC, 198 A.D.3d at 525–526, 152 N.Y.S.3d 820;  New Globaltex Co., Ltd. v. Zhe Lin, 173 A.D.3d 434, 99 N.Y.S.3d 632 [1st Dept. 2019];  CPLR 5701[c]).

The court properly found that plaintiff failed to demonstrate sufficient cause for seeking a default judgment more than a year after defendant's default to avoid dismissal under CPLR 3215(c)(see Selective Auto Ins. Company of N.J. v. Nesbitt, 161 A.D.3d 560, 78 N.Y.S.3d 97 [1st Dept. 2018];  NYCTL 2017–A Trust v. Heirs–at–Law of John Ghiselli, 215 A.D.3d 427, 429, 186 N.Y.S.3d 632 [1st Dept. 2023]).  Plaintiff moved for a default judgment against defendant two years and four months after his failure to appear or answer the complaint.  Her attorney's letters to defendant's insurance carrier sent within a year from defendant's default, while not the equivalent of ongoing settlement negotiations, showed an initial lack of intent to abandon her claim (see Hinds v. 2461 Realty Corp., 169 A.D.2d 629, 632, 564 N.Y.S.2d 763 [1st Dept. 1991];  Corbin v. Wood Pro Installers, Inc., 184 A.D.2d 234, 586 N.Y.S.2d 746 [1st Dept. 1992]).  However, plaintiff did not submit evidence of any letters or activity after February 2022 and before June 2023, when plaintiff moved for a default judgment, and plaintiff failed to address this 16–month period of inactivity.