Turnbull v. Summit Entertainment Corp.

Appellate Division of the Supreme Court of New York

Turnbull v. Summit Entertainment Corp.

300 A.D.2d 392, 750 N.Y.S.2d 784

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

DecidedDecember 9, 2002

StatusPublished

Cited by2 cases

This text of 300 A.D.2d 392 (Turnbull v. Summit Entertainment Corp.) 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

Turnbull v. Summit Entertainment Corp., 300 A.D.2d 392, 750 N.Y.S.2d 784 (N.Y. Ct. App. 2002).

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Opinion

—In an action to recover damages for personal injuries, the defendant Summit Entertainment Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Carter, J.), dated November 26, 2001, as denied its cross motion pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against it and directed it to serve an answer.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed insofar as asserted against the appellant.

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 complaint, the plaintiff must offer a reasonable excuse for his or her delay and demonstrate the merits of the complaint (see CPLR 3215 [c]; Piccirillo v Greenspan, 291 AD2d 486). The plaintiff failed to proffer a reasonable excuse for his failure to seek leave to enter a judgment within one year after the defendant’s default (see Opia v Chukwu, 278 AD2d 394; Spadafora v Home Depot, 287 AD2d 495). Accordingly, the Supreme Court should have granted the cross motion to dismiss the complaint insofar as asserted against the appellant. Florio, J.P., Feuerstein, McGinity and Schmidt, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant Summit Entertainment Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Carter, J.), dated November 26, 2001, as denied its cross motion pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against it and directed it to serve an answer.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed insofar as asserted against the appellant.

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 complaint, the plaintiff must offer a reasonable excuse for his or her delay and demonstrate the merits of the complaint (see CPLR 3215 [c]; Piccirillo v Greenspan, 291 AD2d 486). The plaintiff failed to proffer a reasonable excuse for his failure to seek leave to enter a judgment within one year after the defendant’s default (see Opia v Chukwu, 278 AD2d 394; Spadafora v Home Depot, 287 AD2d 495). Accordingly, the Supreme Court should have granted the cross motion to dismiss the complaint insofar as asserted against the appellant. Florio, J.P., Feuerstein, McGinity and Schmidt, JJ., concur.

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Bluebook (online)

300 A.D.2d 392, 750 N.Y.S.2d 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turnbull-v-summit-entertainment-corp-nyappdiv-2002.

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