DuBOIS v. ROSLYN NATIONAL MORTGAGE CORPORATION (2008)

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated November 27, 2006, which granted that branch of the motion of the defendant Argent Mortgage Company, LLC, which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3215(c), denied their cross motion, in effect for summary judgment, and, sua sponte, directed the dismissal of the complaint with prejudice as to all of the defendants.

ORDERED that the order is affirmed, with one bill of costs.

 “When a plaintiff fails to seek leave to enter a default judgment within one year after the default has occurred, the action is deemed abandoned” (Kay Waterproofing Corp. v. Ray Realty Fulton, Inc., 23 A.D.3d 624, 625, 804 N.Y.S.2d 815;  see County of Nassau v. Chmela, 45 A.D.3d 722, 846 N.Y.S.2d 299;  State Farm Mut. Auto. Ins. Co. v. Rodriguez, 12 A.D.3d 662, 663, 784 N.Y.S.2d 875;  see also CPLR 3215[c] ).  “To avoid dismissal of the complaint as abandoned under such circumstances, a plaintiff must offer a reasonable excuse for the delay in moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious” (Kay Waterproofing Corp. v. Ray Realty Fulton, Inc., 23 A.D.3d at 625, 804 N.Y.S.2d 815;  see County of Nassau v. Chmela, 45 A.D.3d 722, 846 N.Y.S.2d 299;  Durr v. New York Community Hosp., 43 A.D.3d 388, 840 N.Y.S.2d 430;  Costello v. Reilly, 36 A.D.3d 581, 828 N.Y.S.2d 172;  London v. Iceland Inc., 306 A.D.2d 517, 761 N.Y.S.2d 862).   Here, the plaintiffs offered no reasonable excuse for failing to enter a judgment against the defendants within one year of their failure to answer (cf. County of Nassau v. Chmela, 45 A.D.3d 722, 846 N.Y.S.2d 299;  Durr v. New York Community Hosp., 43 A.D.3d 388, 840 N.Y.S.2d 430;  Iskhakova v. Klages, 37 A.D.3d 542, 829 N.Y.S.2d 678;  Oparaji v. Madison Queens-Guy Brewer, 293 A.D.2d 591, 592, 740 N.Y.S.2d 237).   Moreover, there is no merit to the causes of action alleged in their complaint (see Oparaji v. Madison Queens-Guy Brewer, 293 A.D.2d 591, 592, 740 N.Y.S.2d 237;  cf. Durr v. New York Community Hosp., 43 A.D.3d 388, 840 N.Y.S.2d 430;  Radish v. Rodriguez, 31 A.D.3d 524, 817 N.Y.S.2d 521).   Accordingly, the Supreme Court properly granted that branch of the motion of the defendant Argent Mortgage Company, LLC, which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3215(c), denied the plaintiffs' cross motion for judgment in their favor, and, sua sponte, directed the dismissal of the complaint with prejudice as to all defendants.