Mattera v. Capric
Full Opinion (html_with_citations)
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated January 29, 2008, as, in effect, denied that branch of their cross motion pursuant to CFLR 3215 (c) which was to dismiss the complaint as abandoned.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and that branch of the defendants’ cross motion pursuant to CFLR 3215 (c) which was to dismiss the complaint as abandoned is granted.
“When a plaintiff fails to seek leave to enter a default judgment within one year after the default has occurred, the action is deemed abandoned” (Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]; see CFLR 3215 [c]). “To avoid dismissal of the complaint as abandoned pursuant to CFLR 3215 (c), a plaintiff must offer a reasonable excuse for his or her delay and must demonstrate that the complaint is meritorious” (London v Iceland Inc., 306 AD2d 517 [2003]; see Scrimenti v Dry Harbor Nursing Home, 34 AD3d 439, 440 [2006]).
Here, the plaintiff failed to offer a reasonable excuse why she
The plaintiff also failed to demonstrate the merits of her complaint. She did not submit an affidavit of merit, and her attorney’s affirmation was not based upon personal knowledge and did not set forth sufficient evidentiary facts (see Oversby v Linde Div. of Union Carbide Corp., 121 AD2d 373 [1986]). Moreover, the verified complaint was insufficient since it was verified by the plaintiffs former attorney rather than by the plaintiff herself (see Costello v Reilly, 36 AD3d at 581-582).
Accordingly, the Supreme Court should have granted that branch of the defendants’ cross motion pursuant to CPLR 3215 (c) which was to dismiss the complaint as abandoned. Mastro, J.E, Dillon, Eng and Belen, JJ., concur.