State Street Bank & Trust Co. v. Francis

284 A.D.2d 324, 725 N.Y.S.2d 562, 2001 N.Y. App. Div. LEXIS 6255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 2001
• Status: Published

Opinion

—In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (Joseph, J.), entered June 7, 2000, which denied its motion for leave to enter judgment against the defendants upon their respective defaults in answering the complaint, and, upon the cross motion of the defendants Norris E. Francis and Patricia Francis pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against them, dismissed the complaint in its entirety.

Ordered that the order is affirmed, with costs payable to the respondents Norris E. Francis and Patricia Francis.

The plaintiff failed to move for leave to enter judgment within one year following the respective defaults of the defendants in answering the complaint (see, CPLR 3215 [c]), and failed to offer a reasonable excuse for the delay of almost five years in making such a motion (see, Opia v Chukwu, 278 AD2d 394; Korea Exch. Bank v Attilio, 186 AD2d 634). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs motion and dismissing the complaint (see, CPLR 3215 [c]; Demery v City of New York, 149 AD2d 405; De Vito v Marine Midland Bank, 100 AD2d 530; Grosso v Hauck, 99 AD2d 750).

We have not considered the papers submitted in connection with the plaintiffs motion for reargument, which motion was denied, as they are not properly part of the record on this appeal. Goldstein, J. P., Friedmann, Feuerstein and Crane, JJ., concur.