Mejia-Ortiz v. Inoa

Appellate Division of the Supreme Court of New York

Mejia-Ortiz v. Inoa

71 A.D.3d 517, 895 N.Y.S.2d 816

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

DecidedMarch 16, 2010

StatusPublished

Cited by3 cases

This text of 71 A.D.3d 517 (Mejia-Ortiz v. Inoa) 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

Mejia-Ortiz v. Inoa, 71 A.D.3d 517, 895 N.Y.S.2d 816 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered September 30, 2009, which denied plaintiff s CPLR 3215 motion for a default judgment as against defendant Santos Brown-Grey and dismissed the complaint with prejudice, unanimously affirmed, without costs.

Plaintiff failed to take proceedings for the entry of judgment within one year after the default. Defendant Brown-Grey was purportedly served with the summons and complaint via the Secretary of State on January 23, 2007 (see Vehicle and Traffic Law § 253). Accordingly, defendant’s last day to answer was February 22, 2007 (see CPLR 3012 [c]) and the default occurred the following day, February 23, 2007. Plaintiff moved for a default judgment against defendant Brown-Grey by notice of motion dated July 13, 2009. Thus, by moving almost 2V2 years after the default, plaintiff failed to take proceedings for the entry of judgment within one year after the default (see Butindaro v Grinberg, 57 AD3d 932, 932-933 [2008]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]; Skeete v Bell, 292 AD2d 371 [2002]).

We find that the motion court did not improvidently exercise its discretion in finding that plaintiff failed to demonstrate a reasonable excuse for his delay (see Opia v Chukwu, 278 AD2d 394 [2000]). Counsel’s explanation for the delay in moving for the default is that his office staff failed to track the case properly. In addition, there was no submission of a personal affidavit of merit or verification of the complaint by plaintiff (see CPLR 3215 [f]; Beltre v Babu, 32 AD3d 722 [2006]; Feffer v Malpeso, 210 AD2d 60 [1994]). Concur—Friedman, J.P., Catterson, McGuire, Acosta and Renwick, JJ.

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Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered September 30, 2009, which denied plaintiff s CPLR 3215 motion for a default judgment as against defendant Santos Brown-Grey and dismissed the complaint with prejudice, unanimously affirmed, without costs.

Plaintiff failed to take proceedings for the entry of judgment within one year after the default. Defendant Brown-Grey was purportedly served with the summons and complaint via the Secretary of State on January 23, 2007 (see Vehicle and Traffic Law § 253). Accordingly, defendant’s last day to answer was February 22, 2007 (see CPLR 3012 [c]) and the default occurred the following day, February 23, 2007. Plaintiff moved for a default judgment against defendant Brown-Grey by notice of motion dated July 13, 2009. Thus, by moving almost 2V2 years after the default, plaintiff failed to take proceedings for the entry of judgment within one year after the default (see Butindaro v Grinberg, 57 AD3d 932, 932-933 [2008]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]; Skeete v Bell, 292 AD2d 371 [2002]).

We find that the motion court did not improvidently exercise its discretion in finding that plaintiff failed to demonstrate a reasonable excuse for his delay (see Opia v Chukwu, 278 AD2d 394 [2000]). Counsel’s explanation for the delay in moving for the default is that his office staff failed to track the case properly. In addition, there was no submission of a personal affidavit of merit or verification of the complaint by plaintiff (see CPLR 3215 [f]; Beltre v Babu, 32 AD3d 722 [2006]; Feffer v Malpeso, 210 AD2d 60 [1994]). Concur—Friedman, J.P., Catterson, McGuire, Acosta and Renwick, JJ.

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Bluebook (online)

71 A.D.3d 517, 895 N.Y.S.2d 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mejia-ortiz-v-inoa-nyappdiv-2010.

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