Oliveras v. Vornado Realty Trust

55 A.D.3d 574, 864 N.Y.S.2d 324

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 2008
• Status: Published

Opinion

In an action, inter alia, to recover damages for personal injuries, the defendant Business Maintenance Services, LLC, appeals from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated September 21, 2007, as denied its cross motion to dismiss the complaint pursuant to CPLR 3215 (c) on the ground that the plaintiff failed to move for leave to enter a default judgment against it within one year.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court did not improvidently exercise its discretion in denying the defendant’s cross motion to dismiss the complaint pursuant to CPLR 3215 (c) on the ground that the plaintiff had failed to move for leave to enter a default judgment against it within one year. The plaintiff’s counsel adequately explained the reason for the failure, and the plaintiffs affidavit demonstrated the existence of a meritorious claim (see State Farm Mut. Auto. Ins. Co. v Rodriguez, 12 AD3d 662 [2004]; cf. Costello v Reilly, 36 AD3d 581 [2007]). Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ., concur.