October 27, 2015

Linden Equip., Inc. v Praetorian Ins. Co. (2015 NY Slip Op 51545(U))

Headnote

The court considered the plaintiff's failure to move for entry of a default judgment within one year, as required by CPLR 3215(a). However, the court exercised its discretion to deny the defendant's motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c). The main issue decided was whether the plaintiff demonstrated a meritorious cause of action for assigned first-party no-fault benefits and if the defendant was prejudiced by the plaintiff's delay. The holding of the case was that the court affirmed the order denying the defendant's motion to dismiss the complaint as abandoned, as the plaintiff demonstrated a meritorious cause of action and the defendant was not prejudiced by the plaintiff's delay.

Reported in New York Official Reports at Linden Equip., Inc. v Praetorian Ins. Co. (2015 NY Slip Op 51545(U))

Linden Equip., Inc. v Praetorian Ins. Co. (2015 NY Slip Op 51545(U)) [*1]

Linden Equip., Inc. v Praetorian Ins. Co.

2015 NY Slip Op 51545(U) [49 Misc 3d 137(A)]

Decided on October 27, 2015

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570787/15

Linden Equipment, Inc., a/a/o Fitz Beckford, Plaintiff-Respondent
against
Praetorian Ins. Co., Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), dated January 14, 2014, as denied its motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c).

Per Curiam.

Order (James E. d’Auguste, J.), dated January 14, 2014, insofar as appealed from, affirmed, with $10 costs.

Although plaintiff failed to move for entry of a default judgment within one year (see CPLR 3215[a]), the court exercised its discretion providently by denying defendant’s motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c). Plaintiff demonstrated a meritorious cause of action for assigned first-party no-fault benefits, which defendant does not dispute and, although the particular law office failure excuse proffered by plaintiff is less than compelling, there is no indication in the record that defendant was in any way prejudiced by plaintiff’s delay (see LaValle v Astoria Constr. & Paving Corp., 266 AD2d 28 [1999]; see also Spira v New York City Tr. Auth., 49 AD3d 478 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 27, 2015