Umlic-One, Inc. v. Cahill Trust

236 A.D.2d 390, 654 N.Y.S.2d 574, 1997 N.Y. App. Div. LEXIS 1027

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1997
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendant Cahill Trust appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (D’Emilio, J.), entered November 22, 1995, as denied its motion pursuant to CPLR 3215 (c) to dismiss the complaint as abandoned insofar as asserted against it, and granted the plaintiff’s cross motion pursuant to CPLR 2005 to extend the time to enter a default judgment against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the appellant’s motion pursuant to CPLR 3215 (c) to dismiss the complaint as abandoned insofar as asserted against it. The plaintiff established both a reasonable excuse for its failure to enter a default judgment against the appellant within one year, and that its claim was meritorious (see, Ingenito v Grumman Corp., 192 AD2d 509; Byk-Chemie GmbH v Efka Chems., B.V., 161 AD2d 196). Under the circumstances of this case, the court properly granted the plaintiff an extension of time to enter a default judgment against the appellant (see, CPLR 3215 [d]; 2005). Bracken, J. P., O’Brien, Florio and Luciano, JJ., concur.