State Farm Mutual Automobile Insurance v. Rodriguez

12 A.D.3d 662, 784 N.Y.S.2d 875, 2004 N.Y. App. Div. LEXIS 14503

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 2004
• Status: Published

Opinion

In a subrogation action to recover insurance benefits paid to the plaintiffs insured, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated April 12, 2004, as denied his cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

Ordered that the order is affirmed insofar as appealed from, 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])” (Turnbull v Summit Entertainment Corp., 300 AD2d 392, 392 [2002]). Under such circumstances, to avoid dismissal of the complaint, the plaintiff must offer a reasonable excuse for its delay and demonstrate the merits of the complaint (see CPLR 3215 [c]).

The plaintiffs delay in entering a default judgment was reasonable under the circumstances. The plaintiffs counsel notified the defendant’s insurance carrier of the action within the one-year period specified in CPLR 3215 (c) and the carrier indicated that it was attempting to confirm coverage (see Rivera v Shlagbaum, 204 AD2d 524 [1994]; Ingenito v Grumman Corp., 192 AD2d 509, 510-511 [1993]; Hinds v 2461 Realty Corp., 169 AD2d 629 [1991]). Furthermore, the complaint verified by the plaintiffs attorney was sufficient to constitute a sufficient affidavit of merits where, as here, the plaintiffs attorney had personal knowledge of the facts constituting the action (see CPLR 105 [u]; Martin v Zangrillo, 186 AD2d 724 [1992]). Florio, J.P., Goldstein, Adams, Rivera and Spolzino, JJ., concur.