Demery v. City of New York

Appellate Division of the Supreme Court of New York

Demery v. City of New York

149 A.D.2d 405, 542 N.Y.S.2d 971, 1989 N.Y. App. Div. LEXIS 4398

Appellate Division of the Supreme Court of the State of New York·Decided April 3, 1989·Published·Cited by 2 cases

Opinion

— In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated December 14, 1987, which granted the motion of the defendant Balsam Cab Corp. to dismiss the complaint as against it pursuant to CPLR 3215 (c) and denied his cross motion for leave to enter a default judgment against Balsam Cab Corp.

Ordered that the order is affirmed, with costs.

The plaintiff failed to offer a reasonable excuse for his failure to commence proceedings for entry of a default judgment for over two years after the default; nor did his affidavit of merit establish the existence of meritorious claim against the defendant Balsam Cab Corp. Accordingly the court did not improvidently exercise its discretion in dismissing the complaint as against that defendant (CPLR 3215 [c]; Monzon v Sony Motor, 115 AD2d 714; cf., Fazio v C.B. Warehousing, 133 AD2d 737; Woodward v City of New York, 119 AD2d 749). Mollen, P. J., Bracken, Rubin and Sullivan, JJ., concur.

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— In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated December 14, 1987, which granted the motion of the defendant Balsam Cab Corp. to dismiss the complaint as against it pursuant to CPLR 3215 (c) and denied his cross motion for leave to enter a default judgment against Balsam Cab Corp.

Ordered that the order is affirmed, with costs.

The plaintiff failed to offer a reasonable excuse for his failure to commence proceedings for entry of a default judgment for over two years after the default; nor did his affidavit of merit establish the existence of meritorious claim against the defendant Balsam Cab Corp. Accordingly the court did not improvidently exercise its discretion in dismissing the complaint as against that defendant (CPLR 3215 [c]; Monzon v Sony Motor, 115 AD2d 714; cf., Fazio v C.B. Warehousing, 133 AD2d 737; Woodward v City of New York, 119 AD2d 749). Mollen, P. J., Bracken, Rubin and Sullivan, JJ., concur.

Demery v. City of New York, 149 A.D.2d 405, 542 N.Y.S.2d 971, 1989 N.Y. App. Div. LEXIS 4398 (N.Y. Ct. App. 1989).

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149 A.D.2d 405 (Demery v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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