Brown v. Andreoli

Order, Supreme Court, New York County (George J. Silver, J.), entered June 9, 2010, which, in an action for personal injuries arising out of a motor vehicle accident, granted plaintiffs motion for a default judgment to the extent that if defendant did not file her answer within 45 days of service of the order with notice of entry, a default judgment would be entered against her, unanimously reversed, on the law, without costs, the motion denied, and the complaint dismissed as abandoned. The Clerk is directed to enter judgment accordingly. Plaintiff failed to demonstrate a reasonable excuse for failing to move for a default judgment until more than one year after defendant’s time to answer had expired (see CPLR 3215 [c]; Mejia-Ortiz v Inoa, 71 AD3d 517 [2010]). Counsel’s proffered explanation for the delay in moving for a default judgment, namely health problems, did not constitute a reasonable excuse since those health problems occurred outside the one-year period in which plaintiff had to move (see Mattera v Capric, 54 AD3d 827 [2008]). The motion court, after determining that no reasonable excuse had been established, should have dismissed the complaint as abandoned (see CPLR 3215 [c]; Perricone v City of New York, 62 NY2d 661, 663 [1984]; Opia v Chukwu, 278 AD2d 394 [2000]). Concur—Gonzalez, P.J., Friedman, Catterson, Renwick and Abdus-Salaam, JJ.