Radish v. Rodriguez

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated September 14, 2005, which granted the plaintiffs motion for leave to enter judgment upon their default in answering, and denied their cross motion pursuant to CPLR 3215 (c) to dismiss the complaint. Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the complaint is dismissed. 525 Given the plaintiff’s failure to present evidence of a viable cause of action, the court should have denied the plaintiffs motion for leave to enter judgment upon the defendants’ default (see CPLR 3215 [f]; Beaton v Transit Facility Corp., 14 AD3d 637 [2005]), and granted the defendants’ cross motion to dismiss the complaint (see CPLR 3215 [c]; Piccirillo v Greenspan, 291 AD2d 486, 486-487 [2002]; Akler v Booth Mem. Med. Ctr., 257 AD2d 640, 641 [1999]). Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.