SARASOTA INC v. FINKEL

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

SARASOTA, INC., doing business as Credit Control Management, Plaintiff-Respondent, v. Tina FINKEL, also known as Tina F. Mulligan, et al., Defendants-Appellants.

Decided: October 28, 2004

TOM, J.P., SAXE, ELLERIN, LERNER, GONZALEZ, JJ. Arnold W. Blatt, New City, for appellants. Craner, Satkin & Scheer, P.A., New York (John A. Craner of counsel), for respondent.

Order, Supreme Court, New York County (Ira Gammerman, J.), entered April 11, 2003, which, to the extent appealed from as limited by the brief, denied defendants' cross motion to dismiss the complaint for failure to enter a default judgment within one year pursuant to CPLR 3215(c), unanimously affirmed, without costs.

The court properly held that CPLR 3215 is not applicable to this case.   Plaintiff's failure was not a failure to move for a default judgment but a failure to submit a money judgment to the Clerk for entry.   Moreover, the court properly exercised its discretion pursuant to 22 NYCRR 202.48 in denying the motion to dismiss on that ground and permitting the judgment to be entered despite the long delay (see also Peerless Insurance Co. v. Casey, 194 A.D.2d 411, 412, 599 N.Y.S.2d 542 [1993] [seven-year delay in entering money judgment resulted not in dismissal but in calculation of interest from belated date of entry] ).

The Decision and Order of this Court entered herein on May 20, 2004 is hereby recalled and vacated (see M-2791 decided simultaneously herewith).