Benjamin v. City of New York

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 2016
• Docket: 2016 NYSlipOp 50902(U)
• Status: Published

Opinion

John Benjamin, Plaintiff-Appellant, The

against

City of New York, Hostos Center for Work Force Development & Continuing Education, Peter Mertens, Vermelle Van Duyne, and Alexander Seki, Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated February 25, 2016, which granted the motion of defendants Hostos Center for Workforce Development & Continuing Education, Peter Mertens, Vermelle Van Duyne and Alexander Seki to dismiss the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), dated February 25, 2016, affirmed, with $10 costs.

We agree with the motion court that the action should be dismissed, albeit on grounds different from those stated. Inasmuch as the moving defendants were in default for failing to timely answer the complaint or appear in this action, and no extension of time was requested, that branch of their motion to dismiss the complaint pursuant to CPLR 3211(a) was untimely and should not have been considered (see CPLR 3211[e]; Holubar v Holubar, 89 AD3d 802 [2011]; McGee v Dunn, 75 AD3d 624 [2010]).

However, that branch of defendants' motion to dismiss the complaint pursuant to CPLR 3215(c) should have been granted. Plaintiff did not move for leave to enter judgment against defendants for more than one year after they defaulted in answering the complaint, and plaintiff failed to offer a reasonable excuse for this delay or demonstrate that the complaint is meritorious (see Kay Waterproofing Corp v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). In the latter regard, plaintiff failed to show that the assault from a fellow college student was foreseeable and that defendants breached a duty owed to him (see Ayeni v County of Nassau, 18 AD3d 409 [2005]). Nor can plaintiff obtain damages related to the determination to expel him from the community college, since such a claim must be asserted in a CPLR article 78 proceeding (see Mitchell v New York Univ., 129 AD3d 542, 544 [2015], lv denied 26 NY3d 908 [2015]; Kickertz v New York Univ., 110 AD3d 268, 276-277 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 15, 2016