Livingston v. Livingston

303 A.D.2d 975, 756 N.Y.S.2d 681, 2003 N.Y. App. Div. LEXIS 2790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2003
• Status: Published

Opinion

—Appeal from an amended order of Supreme Court, Monroe County (Ark, J.), entered April 11, 2002, which denied plaintiffs motion for judgment and granted defendant’s cross motion to dismiss the complaint as abandoned.

It is hereby ordered that the amended order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff failed to take proceedings for the entry of judgment within one year after defendant’s default, and thus Supreme Court properly granted defendant’s cross motion to dismiss the complaint as abandoned (see CPLR 3215 [c]). In opposing the cross motion, plaintiff had to show “sufficient cause * * * why the complaint should not be dismissed” (id.), and she failed to do so. Contrary to the contention of plaintiff, her conclusory assertion in opposition to the cross motion that she was “simply and wholly without the financial, physical, medical and psychological resources to aggressively pursue” the action does not constitute sufficient cause (see e.g. Neuman v Greenblatt, 260 AD2d 616, 617 [1999]; Smallridge v Macalaster Bicknell Co. of N.Y., 134 AD2d 880, 881 [1987]). During the 21h years between the filing of the complaint and the filing of her motion for judgment, plaintiff gave no indication “that [she] did not intend to abandon the action” (Corbin v Wood Pro Installers, 184 AD2d 234, 234 [1992]; cf. Micheli v E.J. Bldrs., 268 AD2d 777, 779-780 [2000]). Present — Pigott, Jr., P.J., Pine, Hurlbutt, Lawton and Hayes, JJ.