Hoppenfeld v. Hoppenfeld

220 A.D.2d 302, 632 N.Y.S.2d 558, 1995 N.Y. App. Div. LEXIS 10236

Opinion

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered May 24, 1994, which, inter alia, granted defendants’ cross motion to dismiss plaintiffs’ amended complaint as abandoned pursuant to CPLR 3215 (c), unanimously affirmed, without costs.

The IAS Court properly dismissed the amended complaint as abandoned pursuant to CPLR 3215 (c) for plaintiffs’ failure to seek the entry of a default judgment within ten years and eight months after defendants defaulted in interposing an answer to the amended complaint. Where, as here, plaintiffs failed to pursue a default judgment within one year of the default in answering, and failed to set forth a viable excuse for the delay and demonstrate a meritorious cause of action, dismissal of the underlying action as abandoned is required (Perricone v City of New York, 62 NY2d 661; Ballin v Ballin, 204 AD2d 1078, 1079; Rendelman v Southside Hosp., 141 AD2d 521, 521-522).

Plaintiffs cannot evade their responsibility to proceed to judgment for a period of longer than ten years by claiming that defendants are responsible for the delay since the record reveals that no motion practice, scheduled deposition or any other proceeding was a barrier to obtaining a judgment on the default in interposing an answer to the amended complaint (Bevona v Judson Realty, 213 AD2d 349; Winkelman v H & S Beer & Soda Discounts, 91 AD2d 660). Nor did the filing of an answer by the defendants to the plaintiffs’ original complaint render the provisions of CPLR 3215 (c) inapplicable, since after the complaint was formally amended and served, it superseded the original complaint, became the only complaint in the case, and therefore required that a new responsive pleading be substituted for the original superseded answer (St. Lawrence Explosives Corp. v Law Bros. Contr. Corp., 170 AD2d 957). Concur—Murphy, P. J., Asch, Nardelli and Mazzarelli, JJ.