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Avir Surgical Supplies, Inc. As Assignee of Cigdem Demirkan v. Windsor Group Insurance Company

July 28, 2011

AVIR SURGICAL SUPPLIES, INC. AS ASSIGNEE OF CIGDEM DEMIRKAN,
RESPONDENT,
v.
WINDSOR GROUP INSURANCE COMPANY,
APPELLANT.



Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 6, 2009. The order denied defendant's motion, pursuant to CPLR 3215 (c), to dismiss the complaint as abandoned.

Avir Surgical Supplies, Inc. v Windsor Group Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 28, 2011

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

ORDERED that the order is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, defendant failed to timely appear in the action. After more than a year had elapsed, defendant served an answer together with discovery demands on plaintiff and filed the answer with the court. About a week later, defendant served and filed an amended answer. At the same time, defendant moved, pursuant to CPLR 3215 (c), to dismiss the complaint as abandoned. The Civil Court denied defendant's motion, holding that, by serving its answer, defendant had appeared in the action and had waived its entitlement to such relief.

CPLR 3215 (c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." CPLR 3215 (c) applies where a defendant has not served an answer or taken any other steps which may be viewed as a formal or informal appearance (see Myers v Slutsky, 139 AD2d 709 [1988]). However, a defendant's submission of an answer and service of discovery demands act as a waiver of any right the defendant may have to the dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Gonzalez v Gonzalez, 240 AD2d 630 [1997]; Sutter v Rosenbaum, 166 AD2d 644 [1990]; Myers v Slutsky, 139 AD2d at 710). In view of the foregoing, the Civil Court properly denied defendant's motion to dismiss the complaint as abandoned pursuant to CPLR 3215 (c).

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

Golia, J., dissents in a separate memorandum.

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

PRESENT PESCE, P.J., WESTON and GOLIA, JJ.

AVIR SURGICAL SUPPLIES, INC. as Assignee of CIGDEM DEMIRKAN, Respondent, v. DECIDED WINDSOR ...


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