April 26, 2011

Valentin Avanessov, M.D., P.C. v Progressive Ins. Co. (2011 NY Slip Op 50778(U))

Headnote

The court considered the fact that the plaintiff sought to recover first-party no-fault benefits from the defendant, who defaulted on the case. The plaintiff then moved for a default judgment two years and four months later. The main issue decided was whether the plaintiff had provided a reasonable excuse for the delay in seeking a default judgment and whether the complaint was meritorious. The holding of the case was that the plaintiff's motion for the entry of a default judgment was denied and the defendant's cross motion to dismiss the complaint was granted, as the plaintiff failed to offer a reasonable excuse for the delay in seeking a default judgment and did not demonstrate that the complaint was meritorious.

Reported in New York Official Reports at Valentin Avanessov, M.D., P.C. v Progressive Ins. Co. (2011 NY Slip Op 50778(U))

Valentin Avanessov, M.D., P.C. v Progressive Ins. Co. (2011 NY Slip Op 50778(U)) [*1]

Valentin Avanessov, M.D., P.C. v Progressive Ins. Co.

2011 NY Slip Op 50778(U) [31 Misc 3d 139(A)]

Decided on April 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
.

Valentin Avanessov, M.D., P.C. as Assignee of PAVEL NADGLOWSKI, Respondent, NO~ 2010-574 K C
against
Progressive Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered February 18, 2010. The order granted plaintiff’s motion for the entry of a default judgment unless defendant served and filed an answer within 30 days of the date of the order, and implicitly denied defendant’s cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

ORDERED that the order is reversed, without costs, plaintiff’s motion to enter a default judgment is denied, and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits by the service on October 17, 2006 of a summons with endorsed complaint. Defendant defaulted. Approximately two years and four months later, in February 2009, plaintiff moved for the entry of a default judgment. Defendant opposed the motion on the ground that it was supported by insufficient proof, and cross-moved to dismiss pursuant to CPLR 3215 (c). Plaintiff failed to offer any opposition to defendant’s cross motion. By order entered February 18, 2010, the Civil Court granted plaintiff’s motion to enter a default judgment unless defendant served and filed an answer within 30 days of the date of the order, and implicitly denied defendant’s cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

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 Corely, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). Upon a review of the motion papers, we find that dismissal of [*2]the complaint was required pursuant to CPLR 3215 (c).

Accordingly, the order is reversed, plaintiff’s motion for the entry of a default judgment is denied, and defendant’s cross motion to dismiss the complaint is granted.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 26, 2011