Garcia v. City of New York

Appellate Division of the Supreme Court of New York

Garcia v. City of New York

71 A.D.3d 503, 895 N.Y.S.2d 817

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 16, 2010

StatusPublished

This text of 71 A.D.3d 503 (Garcia v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Garcia v. City of New York, 71 A.D.3d 503, 895 N.Y.S.2d 817 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 19, 2008, which, insofar as appealed from, in this action for personal injuries sustained in a trip and fall on a sidewalk, denied defendant Lafayette-Morrison Housing Corporation’s cross motion pursuant to CPLR 3215 (c) to dismiss the complaint as against it, unanimously affirmed, without costs.

The cross motion was properly denied as plaintiff took proceedings for the entry of judgment within one year after the default, thereby rendering CPLR 3215 (c) inapplicable. The record shows that Lafayette was served with the summons and complaint via the Secretary of State on December 17, 2004 (see Business Corporation Law § 306), and thus, Lafayette’s last day to answer was January 16, 2005 (CPLR 3012 [c]). Plaintiff first moved for a default judgment against Lafayette by notice of motion dated September 8, 2005, and continued to take such proceedings by notice of motion dated December 9, 2005, which was also within one year after the default (compare Butindaro v Grinberg, 57 AD3d 932 [2008]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624 [2005]). Plaintiffs repeated efforts to obtain a default judgment demonstrate that he had no intention of abandoning his claim. Concur—Tom, J.P., Sweeny, Catterson, Moskowitz and DeGrasse, JJ.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 19, 2008, which, insofar as appealed from, in this action for personal injuries sustained in a trip and fall on a sidewalk, denied defendant Lafayette-Morrison Housing Corporation’s cross motion pursuant to CPLR 3215 (c) to dismiss the complaint as against it, unanimously affirmed, without costs.

The cross motion was properly denied as plaintiff took proceedings for the entry of judgment within one year after the default, thereby rendering CPLR 3215 (c) inapplicable. The record shows that Lafayette was served with the summons and complaint via the Secretary of State on December 17, 2004 (see Business Corporation Law § 306), and thus, Lafayette’s last day to answer was January 16, 2005 (CPLR 3012 [c]). Plaintiff first moved for a default judgment against Lafayette by notice of motion dated September 8, 2005, and continued to take such proceedings by notice of motion dated December 9, 2005, which was also within one year after the default (compare Butindaro v Grinberg, 57 AD3d 932 [2008]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624 [2005]). Plaintiffs repeated efforts to obtain a default judgment demonstrate that he had no intention of abandoning his claim. Concur—Tom, J.P., Sweeny, Catterson, Moskowitz and DeGrasse, JJ.

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Bluebook (online)

71 A.D.3d 503, 895 N.Y.S.2d 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-city-of-new-york-nyappdiv-2010.

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