Riggi v. Sommerville

Appellate Division of the Supreme Court of New York

Riggi v. Sommerville

273 A.D.2d 290, 710 N.Y.S.2d 543, 2000 N.Y. App. Div. LEXIS 6513

Appellate Division of the Supreme Court of the State of New York·Decided June 12, 2000·Published·Cited by 1 cases

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Scancarelli, J.), dated June 24, 1999, which granted the defendant’s motion pursuant to CPLR 3215 (c) to dismiss the complaint as abandoned.

Ordered that the order is affirmed, with costs.

Where a defendant defaults in appearing or answering and a plaintiff fails to enter a judgment upon the default within one year thereof, the action is deemed abandoned (see, CPLR 3215 [c]). Under such circumstances, to avoid dismissal of the com[291]*291plaint as abandoned, the plaintiff must offer a reasonable excuse for his or her delay and must demonstrate that the complaint is meritorious (see, Manago v Giorlando, 143 AD2d 646). The plaintiff failed to meet this burden. Moreover, contrary to the plaintiff’s contention, the record is devoid of admissible evidence establishing that the defendant did not, in fact, default. O’Brien, J. P., Friedmann, McGinity and Smith, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Scancarelli, J.), dated June 24, 1999, which granted the defendant’s motion pursuant to CPLR 3215 (c) to dismiss the complaint as abandoned.

Ordered that the order is affirmed, with costs.

Where a defendant defaults in appearing or answering and a plaintiff fails to enter a judgment upon the default within one year thereof, the action is deemed abandoned (see, CPLR 3215 [c]). Under such circumstances, to avoid dismissal of the com[291]*291plaint as abandoned, the plaintiff must offer a reasonable excuse for his or her delay and must demonstrate that the complaint is meritorious (see, Manago v Giorlando, 143 AD2d 646). The plaintiff failed to meet this burden. Moreover, contrary to the plaintiff’s contention, the record is devoid of admissible evidence establishing that the defendant did not, in fact, default. O’Brien, J. P., Friedmann, McGinity and Smith, JJ., concur.

Riggi v. Sommerville, 273 A.D.2d 290, 710 N.Y.S.2d 543, 2000 N.Y. App. Div. LEXIS 6513 (N.Y. Ct. App. 2000).

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