Greenpoint Bank v. Ginyard

253 A.D.2d 451, 675 N.Y.S.2d 314, 1998 N.Y. App. Div. LEXIS 8860

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 1998
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant William C. Hamilton appeals from an order of the Supreme Court, Nassau County (Lally, J.), entered September 24, 1997, which, inter alia, granted the plaintiffs motion to vacate its default in seeking to enter a judgment within one year of his default in appearing in the action.

Ordered that the order is affirmed, with costs.

An action is deemed abandoned where a default has occurred and a plaintiff has failed to take proceedings for the entry of a judgment within one year thereafter (see, CPLR 3215 [c]). In order to avoid the dismissal of the complaint as abandoned under such circumstances, the plaintiff must offer a reasonable excuse for the delay and demonstrate the merits of the complaint (see, Richards v Lewis, 243 AD2d 615; Ingenito v Grumman Corp., 192 AD2d 509, 510; Manago v Giorlando, 143 AD2d 646, 647; Eaves v Ocana, 122 AD2d 18).

The plaintiffs affirmation of good faith provided a sufficient explanation for its failure to timely seek to enter a default judgment against the appellant (see, Rivera v Shlagbaum, 204 AD2d 524; Ingenito v Grumman Corp., supra; Corbin v Wood Pro Installers, 184 AD2d 234; Hinds v 2461 Realty Corp., 169 AD2d 629, 632), and its uncontested affidavit of merit established the merits of its complaint (see, Ingenito v Grumman Corp., supra, at 510; Woodward v City of New York, 119 AD2d 749). Therefore, the plaintiffs motion to vacate the default was properly granted.

The appellant’s remaining contentions are without merit. Rosenblatt, J. P., Ritter, Copertino and Florio, JJ., concur.