Seide v. Calderon

Appellate Division of the Supreme Court of New York

Seide v. Calderon

126 A.D.3d 417, 2 N.Y.S.3d 342

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

DecidedMarch 3, 2015

Docket14386 350464/10

StatusPublished

Cited by2 cases

This text of 126 A.D.3d 417 (Seide v. Calderon) 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

Seide v. Calderon, 126 A.D.3d 417, 2 N.Y.S.3d 342 (N.Y. Ct. App. 2015).

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Opinion

Appeal from order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 3, 2013, which denied plaintiffs’ motion for a default judgment against defendants, and granted defendants’ cross motion to dismiss the complaint as abandoned pursuant to CPLR 3215 (c), deemed appeal from judgment, same court and Justice, entered February 7, 2014, and, so considered, the judgment unanimously affirmed, without costs.

We exercise our discretion under CPLR 5520 (c) to deem the appeal from the order as taken from the subsequent judgment, because the relief granted by the judgment is identical to that granted in the order (see Gutman v Savas, 17 AD3d 278, 278-279 [1st Dept 2005]).

The motion court providently exercised its discretion in dismissing the complaint as abandoned, because plaintiffs failed to demonstrate a reasonable excuse for waiting over a year after the expiration of the one-year limitation period before moving for a default judgment (see CPLR 3215 [c]; Diaz v Perez, 113 AD3d 421, 422 [1st Dept 2014]). Plaintiffs’ unsubstantiated excuses are insufficient (see Butindaro v Grinberg, 57 AD3d 932, 933 [2d Dept 2008]; Brodmerkel v James McCullagh Co., Inc., 46 AD3d 853, 853 [2d Dept 2007], lv dismissed 10 NY3d 821 [2008]).

Concur — Tom, J.P., Friedman, Renwick, Manzanet-Daniels and Feinman, JJ.

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Appeal from order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 3, 2013, which denied plaintiffs’ motion for a default judgment against defendants, and granted defendants’ cross motion to dismiss the complaint as abandoned pursuant to CPLR 3215 (c), deemed appeal from judgment, same court and Justice, entered February 7, 2014, and, so considered, the judgment unanimously affirmed, without costs.

We exercise our discretion under CPLR 5520 (c) to deem the appeal from the order as taken from the subsequent judgment, because the relief granted by the judgment is identical to that granted in the order (see Gutman v Savas, 17 AD3d 278, 278-279 [1st Dept 2005]).

The motion court providently exercised its discretion in dismissing the complaint as abandoned, because plaintiffs failed to demonstrate a reasonable excuse for waiting over a year after the expiration of the one-year limitation period before moving for a default judgment (see CPLR 3215 [c]; Diaz v Perez, 113 AD3d 421, 422 [1st Dept 2014]). Plaintiffs’ unsubstantiated excuses are insufficient (see Butindaro v Grinberg, 57 AD3d 932, 933 [2d Dept 2008]; Brodmerkel v James McCullagh Co., Inc., 46 AD3d 853, 853 [2d Dept 2007], lv dismissed 10 NY3d 821 [2008]).

Concur — Tom, J.P., Friedman, Renwick, Manzanet-Daniels and Feinman, JJ.

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Bluebook (online)

126 A.D.3d 417, 2 N.Y.S.3d 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seide-v-calderon-nyappdiv-2015.

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