Geraghty v. Elmhurst Hospital Center of New York City Health & Hospitals Corp.

305 A.D.2d 634, 759 N.Y.S.2d 888, 2003 N.Y. App. Div. LEXIS 5960

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 2003
• Status: Published

Opinion

—In an action, inter alia, to recover damages for medical malpractice and wrongful death, the defendants Lifeco Medical, P.C., and Ramsey Fakhuri appeal from so much of an order of the Supreme Court, Queens County (Flug, J.), dated June 20, 2002, as, upon reargument, adhered to so much of its prior order, dated March 21, 2002, as denied their cross motion pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, upon reargument, the cross motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

An action is deemed abandoned when a default has occurred and a plaintiff fails to seek a default judgment within one year after the default (see CPLR 3215 [c]). To avoid dismissal of the complaint as abandoned under such circumstances, a plaintiff must offer a reasonable excuse for the delay in moving for a default judgment and demonstrate the merits of the complaint (see Richards v Lewis, 243 AD2d 615 [1997]; Ingenito v Grumman Corp., 192 AD2d 509, 510 [1993]). The plaintiffs failed to offer a reasonable excuse for their delay. Therefore, the complaint should have been dismissed insofar as asserted against the appellants. Altman, J.P., Krausman, Goldstein, H. Miller and Crane, JJ., concur.