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Garcia v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 16, 2010

ALEJO GARCIA, PLAINTIFF-RESPONDENT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS,
LAFAYETTE-MORRISON HOUSING CORPORATION, DEFENDANT-APPELLANT.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 19, 2008, which, insofar as appealed from, in this action for personal injuries sustained in a trip and fall on a sidewalk, denied defendant Lafayette-Morrison Housing Corporation's cross motion pursuant to CPLR 3215(c) to dismiss the complaint as against it, unanimously affirmed, without costs.

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.

Tom, J.P., Sweeny, Catterson, Moskowitz, DeGrasse, JJ.

25486/04

The cross motion was properly denied as plaintiff took proceedings for the entry of judgment within one year after the default, thereby rendering CPLR 3215(c) inapplicable. The record shows that Lafayette was served with the summons and complaint via the Secretary of State on December 17, 2004 (see Business Corporation Law § 306), and thus, Lafayette's last day to answer was January 16, 2005 (CPLR 3012[c]). Plaintiff first moved for a default judgment against Lafayette by notice of motion dated September 8, 2005, and continued to take such proceedings by notice of motion dated December 9, 2005, which was also within one year after the default (compare Butindaro v Grinberg, 57 AD3d 932 [2008]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624 [2005]). Plaintiff's repeated efforts to obtain a default judgment demonstrates that he had no intention of abandoning his claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100316

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