Summary
This Appellate Division, Second Department decision reviews an order granting a defendant's cross-motion to dismiss a negligence complaint as abandoned under CPLR 3215(c). The plaintiff failed to move for a default judgment within one year of the defendant's default, citing law office failure due to staff illness. The court affirmed the dismissal, holding that the plaintiff's conclusory, unsworn explanation failed to constitute a reasonable excuse for the delay, thus mandating dismissal under the strict terms of the statute.
Topics
Practice areas
Questions Presented
- Whether the plaintiff’s failure to move for a default judgment within one year of the defendant’s default, without showing sufficient cause, warrants dismissal of the complaint as abandoned under CPLR 3215(c).
Holdings
- The complaint is dismissed as abandoned because the plaintiff failed to provide a reasonable excuse for the delay; the order granting the defendant’s cross‑motion is affirmed.
Key quotations
“The language of the statute is strictly construed, as "[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory inasmuch as courts 'shall' dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one‑year period, as those claims are then deemed abandoned."” (at 307-308)
Factual background
Plaintiff filed a negligence action in August 2021 and served the defendant by affixing the summons to his door and mailing a copy. The defendant failed to answer, resulting in a default. Plaintiff waited more than fourteen months before moving for a default judgment. Defendant moved to dismiss the complaint as abandoned under CPLR 3215(c). The trial court granted the dismissal.
Procedural history
The Supreme Court, Kings County denied the plaintiff's motion for default judgment and granted the defendant's cross‑motion to dismiss as abandoned on July 26, 2023. The appellant appealed that portion of the order. The Appellate Division affirmed the dismissal.