July 25, 2011

Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co. (2011 NY Slip Op 51407(U))

Headnote

The court considered the facts that the plaintiff, Citywide Social Work and Psychological Svcs, P.L.L.C., had commenced an action to recover assigned first-party no-fault benefits in the sum of $1,181.63 and that the defendant, Allstate Ins. Co., failed to timely appear and answer. The main issue decided was whether the Civil Court was correct in denying the plaintiff's motion for leave to enter a default judgment and dismissing the complaint pursuant to CPLR 3215 (c). The holding of the court was that when a plaintiff fails to commence proceedings for the entry of a default judgment within one year of the default, the court shall dismiss the action as abandoned unless sufficient cause is shown why the action should not be dismissed, and in this case, the plaintiff failed to demonstrate a reasonable excuse for the delay in timely moving for leave to enter a default judgment and did not proffer any reasonable excuse for its delay, so the order denying the plaintiff's motion and dismissing the complaint was affirmed.

Reported in New York Official Reports at Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co. (2011 NY Slip Op 51407(U))

Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co. (2011 NY Slip Op 51407(U)) [*1]

Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co.

2011 NY Slip Op 51407(U) [32 Misc 3d 132(A)]

Decided on July 25, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 25, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2010-334 K C.

Citywide Social Work and Psychological Svcs, P.L.L.C. as Assignee of COUSINS LEOPAUL, Appellant,
against
Allstate Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 8, 2009. The order denied the branch of plaintiff’s motion seeking leave to enter a default judgment and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c) is treated as an application for leave to appeal from that portion of the order, and leave to appeal
is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order is affirmed, without costs.

In February 2006, plaintiff commenced this action to recover assigned first-party no-fault benefits in the sum of $1,181.63. Defendant failed to timely appear and answer. In January 2009, plaintiff moved for, among other things, leave to enter a default judgment. By order entered July 8, 2009, the Civil Court denied that branch of plaintiff’s motion and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

When a plaintiff fails to commence proceedings for the entry of a default judgment within one year of the default, the court shall dismiss the action as abandoned unless sufficient cause is shown why the action should not be dismissed (CPLR 3215 [c]; CCA 1402). If the plaintiff demonstrates a reasonable excuse for the delay in timely moving for leave to enter a default judgment and a meritorious cause of action, the complaint will not be dismissed as abandoned (see County of Nassau v Chmela, 45 AD3d 722 [2007]).

In this case, plaintiff admittedly failed to move for leave to enter a default judgment within one year of the default and did not proffer any reasonable excuse for its delay. Further, contrary to plaintiff’s contention, the Civil Court was under no
obligation to notify plaintiff that it intended to “dismiss the complaint as abandoned . . . upon its own initiative” (CPLR 3215 [c]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 25, 2011