Skeete v. Bell

292 A.D.2d 371, 739 N.Y.S.2d 174, 2002 N.Y. App. Div. LEXIS 2208

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated March 2, 2001, which denied her motion for leave to enter judgment on the defendant’s default in answering, and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

Ordered that on the Court’s own motion, so much of the notice of appeal as purports to appeal as of right from the provision of the order that, sua sponte, dismissed the complaint is treated as an application for leave to appeal from that provision of the order, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiffs motion for leave to enter judgment against the defendant upon his default in answering, and dismissed the complaint pursuant to CPLR 3215 (c). While the plaintiffs original motion for leave to enter a default judgment was timely, it was deemed abandoned when the plaintiff failed to settle an order granting the motion (see, 22 NYCRR 202.48). The plaintiffs second motion for leave to enter a default judgment, made almost two years after the defendant’s alleged default, was untimely (see, Richards v Lewis, 243 AD2d 615; Home Sav. of Am. F.A. v Gkanios, 230 AD2d 770; Bank of N.Y. v Gray, 228 AD2d 399). Smith, J.P., Goldstein, McGinity and H. Miller, JJ., concur.