Sergio Fuentes, respondent, et al., plaintiffs, v. Alonzo Virgil, defendant, Rosa Martinez, appellant. (2011)

Submitted—April 13, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Rosa Martinez appeals from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated May 5, 2010, as denied that branch of her cross motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her by the plaintiff Sergio Fuentes.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant Rosa Martinez cross-moved, inter alia, to dismiss the complaint insofar as asserted against her by the plaintiff Sergio Fuentes as abandoned on the ground that Fuentes “fail[ed] to take proceedings for the entry of judgment within one year” after she defaulted in this action (CPLR 3215[c] ).  However, rather than moving for such relief before Fuentes entered a default judgment against her, Martinez did not move for such relief until after Fuentes had already entered the default judgment against her.   As such, the Supreme Court properly denied that branch of Martinez's cross motion which was to dismiss the complaint insofar as asserted against her by Fuentes as abandoned pursuant to CPLR 3215(c), as it was untimely (see Weinstein–Korn–Miller, N.Y. Civ Prac ¶ 3215.15 [2d ed] ).

MASTRO, J.P., FLORIO, LEVENTHAL, BELEN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court