MATTERA v. CAPRIC (2008)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated January 29, 2008, as, in effect, denied that branch of their cross motion pursuant to CPLR 3215(c) which was to dismiss the complaint as abandoned.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and that branch of the defendants' cross motion pursuant to CPLR 3215(c) which was to dismiss the complaint as abandoned is granted.

 “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 CPLR 3215[c] ).  “To avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c), a plaintiff must offer a reasonable excuse for his or her delay and must demonstrate that the complaint is meritorious” (London v. Iceland Inc., 306 A.D.2d 517, 517, 761 N.Y.S.2d 862;  see Scrimenti v. Dry Harbor Nursing Home, 34 A.D.3d 439, 440, 823 N.Y.S.2d 516).

 Here, the plaintiff failed to offer a reasonable excuse why she did not move for leave to enter judgment against the defendants until nearly 3 1/212 years after their default in answering or appearing (see CPLR 3215[c];  Wayloo v. Sheikh, 2 A.D.3d 629, 630, 768 N.Y.S.2d 338).   The purported excuse that the plaintiff did not learn of her former attorney's failure to make a motion for leave to enter judgment until a 2007 uninsured motorist arbitration hearing was held was insufficient since it was supported solely by the affirmation of her current attorney, which was not based on personal knowledge (see Riverhead Bldg. Supply Corp. v. Regine Starr, Inc., 249 A.D.2d 532, 672 N.Y.S.2d 117).   Moreover, the plaintiff's claim of law office failure caused by her former attorney allegedly suffering a stroke in early 2007 was legally insufficient, not only because the alleged stroke occurred after the one-year statutory time period had expired (see Rafiq v. Weston, 171 A.D.2d 783, 784, 567 N.Y.S.2d 503), but also because the purported excuse was vague, conclusory, and unsubstantiated (see Lugauer v. Forest City Ratner Co., 44 A.D.3d 829, 830, 843 N.Y.S.2d 456;  Costello v. Reilly, 36 A.D.3d 581, 828 N.Y.S.2d 172;  Opia v. Chukwu, 278 A.D.2d 394, 718 N.Y.S.2d 71).

 The plaintiff also failed to demonstrate the merits of her complaint.   She did not submit an affidavit of merit, and her attorney's affirmation was not based upon personal knowledge and did not set forth sufficient evidentiary facts (see Oversby v. Linde Div. of Union Carbide Corp., 121 A.D.2d 373, 503 N.Y.S.2d 85).   Moreover, the verified complaint was insufficient since it was verified by the plaintiff's former attorney rather than by the plaintiff herself (see Costello v. Reilly, 36 A.D.3d at 581-582, 828 N.Y.S.2d 172).

Accordingly, the Supreme Court should have granted that branch of the defendants' cross motion pursuant to CPLR 3215(c) which was to dismiss the complaint as abandoned.