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Citywide Social Work and Psychological Svcs, P.L.L.C. As Assignee of Cousins Leopaul v. Allstate Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


July 25, 2011

CITYWIDE SOCIAL WORK AND PSYCHOLOGICAL SVCS, P.L.L.C. AS ASSIGNEE OF COUSINS LEOPAUL, APPELLANT,
v.
ALLSTATE INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 8, 2009.

Citywide Social Work & Psychological Svcs, P.L.L.C. v Allstate Ins. Co. 2011 NY Slip Op 51407(U) Decided on July 25, 2011

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The order denied the branch of plaintiff's motion seeking leave to enter a default judgment and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

ORDERED that, on the court's own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c) is treated as an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order is affirmed, without costs.

In February 2006, plaintiff commenced this action to recover assigned first-party no-fault benefits in the sum of $1,181.63. Defendant failed to timely appear and answer. In January 2009, plaintiff moved for, among other things, leave to enter a default judgment. By order entered July 8, 2009, the Civil Court denied that branch of plaintiff's motion and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

When a plaintiff fails to commence proceedings for the entry of a default judgment within one year of the default, the court shall dismiss the action as abandoned unless sufficient cause is shown why the action should not be dismissed (CPLR 3215 [c]; CCA 1402). If the plaintiff demonstrates a reasonable excuse for the delay in timely moving for leave to enter a default judgment and a meritorious cause of action, the complaint will not be dismissed as abandoned (see County of Nassau v Chmela, 45 AD3d 722 [2007]).

In this case, plaintiff admittedly failed to move for leave to enter a default judgment within one year of the default and did not proffer any reasonable excuse for its delay. Further, contrary to plaintiff's contention, the Civil Court was under no obligation to notify plaintiff that it intended to "dismiss the complaint as abandoned . . . upon its own initiative" (CPLR 3215 [c]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: July 25, 2011

20110725

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