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Sicurella v. 111 Chelsea

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


November 24, 2009

GUY SICURELLA, ET AL., RESPONDENTS,
v.
111 CHELSEA, LLC, APPELLANT.

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated May 12, 2009, as denied its motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., FRED T. SANTUCCI, THOMAS A. DICKERSON, CHERYL E. CHAMBERS & PLUMMER E. LOTT, JJ.

(Index No. 8067/06)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the defendant's motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned is granted.

To avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c), the plaintiffs were required to demonstrate a reasonable excuse for their delay in seeking a default judgment and a meritorious cause of action (see Costello v Reilly, 36 AD3d 581; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624). Here, the plaintiffs failed to offer a reasonable excuse for the three-year delay in seeking a default judgment. Accordingly, the Supreme Court improvidently exercised its discretion in denying the defendant's motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned.

FISHER, J.P., SANTUCCI, DICKERSON, CHAMBERS and LOTT, JJ., concur.

20091124

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