July 8, 2011

Pdg Psychological, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51315(U))

Headnote

The court considered the fact that the plaintiff had filed an answer in November 2003, and had moved for default judgment in February 2004. After a so-ordered stipulation in 2006, the defendant moved to vacate the default judgment and dismiss the complaint. The main issue decided was whether the defendant's conduct in engaging in discovery acted as a waiver of the right to dismiss the complaint pursuant to CPLR 3215 (c). The court held that the defendant's conduct in engaging in discovery was a waiver of their right to dismissal, and therefore affirmed the denial of the branch of defendant's motion seeking to dismiss the complaint.

Reported in New York Official Reports at Pdg Psychological, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51315(U))

Pdg Psychological, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51315(U)) [*1]

Pdg Psychological, P.C. v Clarendon Natl. Ins. Co.

2011 NY Slip Op 51315(U) [32 Misc 3d 130(A)]

Decided on July 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-45 Q C.

PDG Psychological, P.C. as Assignee of VICTORIA DUVERNE, Respondent,
against
Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered July 21, 2009. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3215 (c).

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, an answer was filed in November 2003. In February 2004, plaintiff moved for leave to enter a default judgment, arguing that “[t]here has been no Answer interposed to date, nor has an extension of time to answer been requested or granted.” By order entered March 2, 2004, plaintiff’s motion was granted, on default. In April 2006, defendant moved to preclude plaintiff from offering evidence at trial due to its failure to respond to defendant’s discovery demands. By a so-ordered stipulation dated April 11, 2006, the parties agreed to a discovery schedule. On the same date, plaintiff served defendant with notice of entry of the March 2, 2004 default order. Thereafter, defendant moved to, among other things, vacate the default order and dismiss the complaint as abandoned pursuant to CPLR 3215 (c). By order entered July 21, 2009, the Civil Court granted the branch of defendant’s motion seeking to vacate the default judgment and denied the branch of defendant’s motion seeking to dismiss the complaint. This appeal by defendant ensued.

Defendant argues that since plaintiff failed to take proceedings for the entry of judgment within one year after the March 2, 2004 default order, it is entitled to the dismissal of the complaint pursuant to CPLR 3215 (c). However, defendant’s conduct in engaging in discovery, as evidenced by the April 11, 2006 stipulation, acted as a waiver of any right it may have had to the dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Sutter v Rosenbaum, 166 AD2d 644, 645 [1990]; Myers v Slutsky, 139 AD2d 709, 710 [1988]). Consequently, the Civil Court did not improvidently exercise its discretion in denying the branch of defendant’s motion seeking to dismiss the complaint as abandoned.
Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 2011