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Mejia-Ortiz v. Inoa

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 16, 2010

RAMON MEJIA-ORTIZ, PLAINTIFF-APPELLANT,
v.
GAVIN R. INOA, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered September 30, 2009, which denied plaintiff's CPLR 3215 motion for a default judgment as against defendant Santos Brown-Grey and dismissed the complaint with prejudice, 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.

Friedman, J.P., Catterson, McGuire, Acosta, Renwick, JJ.

6049/07

Plaintiff failed to take proceedings for the entry of judgment within one year after the default. Defendant Brown-Grey was purportedly served with the summons and complaint via the Secretary of State on January 23, 2007 (see VTL 253). Accordingly, defendant's last day to answer was February 22, 2007 (see CPLR 3012 [c]) and the default occurred the following day, February 23, 2007. Plaintiff moved for a default judgment against defendant Brown-Grey by notice of motion dated July 13, 2009. Thus, by moving almost 21/2 years after the default, plaintiff failed to take proceedings for the entry of judgment within one year after the default (see Butindaro v Grinberg, 57 AD3d 932, 932-933 [2008]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]; Skeete v Bell, 292 AD2d 371 [2002]).

We find that the motion court did not improvidently exercise its discretion in finding that plaintiff failed to demonstrate a reasonable excuse for his delay (see Opia v Chukwu, 278 AD2d 394 [2000]). Counsel's explanation for the delay in moving for the default is that his office staff failed to track the case properly. In addition, there was no submission of a personal affidavit of merit or verification of the complaint by plaintiff (see CPLR 3215 [f]; Beltre v Babu, 32 AD3d 722 [2006]; Feffer v Malpero, 210 AD2d 60 [1998]).

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

20100316

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