August 6, 2012

Chi Point Acupuncture, P.C. v Clarendon Ins. Co. (2012 NY Slip Op 51496(U))

Headnote

The court considered the fact that the plaintiff initiated the action to recover assigned first-party no-fault benefits in May of 2008, and the defendant defaulted. More than two years later, the defendant moved to dismiss the complaint pursuant to CPLR 3215 (c), and the Civil Court denied defendant's unopposed motion. The main issue decided was whether the plaintiff offered a reasonable excuse for the delay in moving for leave to enter a default judgment and demonstrated that the complaint was meritorious. The holding of the case was that, upon review of the facts and plaintiff's failure to submit opposition to defendant's motion, dismissal of the complaint was required pursuant to CPLR 3215 (c). Therefore, the order was reversed, and defendant's motion to dismiss the complaint was granted.

Reported in New York Official Reports at Chi Point Acupuncture, P.C. v Clarendon Ins. Co. (2012 NY Slip Op 51496(U))

Chi Point Acupuncture, P.C. v Clarendon Ins. Co. (2012 NY Slip Op 51496(U)) [*1]

Chi Point Acupuncture, P.C. v Clarendon Ins. Co.

2012 NY Slip Op 51496(U) [36 Misc 3d 141(A)]

Decided on August 6, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 6, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3056 Q C.

Chi Point Acupuncture, P.C. NO AVRORA as Assignee of SONYA TAVARES, Respondent, —
against
Clarendon Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 8, 2010. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in May of 2008. Defendant defaulted. More than two years later, defendant moved to dismiss the complaint pursuant to CPLR 3215 (c). The Civil Court denied defendant’s unopposed motion and defendant appeals.

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious, failing which the court, upon its own initiative or on motion, must dismiss the complaint as abandoned (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d 722 [2007]; Jones v Corley, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, [*2]Inc., 23 AD3d 624, 625 [2005]). Upon a review of the facts, and plaintiff’s failure to submit opposition to defendant’s motion, we find that dismissal of the complaint was required pursuant to CPLR 3215 (c).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3215 (c) is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012