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The Neurology Group As Assignee of Anne Belizaire, Gloria Dobroski, Almeta Hollingsworth v. New York City Transit Authority

New York Supreme and/or Appellate Courts Appellate Term, Second Department


March 28, 2012

THE NEUROLOGY GROUP AS ASSIGNEE OF ANNE BELIZAIRE, GLORIA DOBROSKI, ALMETA HOLLINGSWORTH,
STEPHENE MCNEIL AND CLARA PICONE,
APPELLANT-RESPONDENT,
v.
NEW YORK CITY TRANSIT AUTHORITY,
RESPONDENT-APPELLANT.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered June 2, 2006.

Neurology Group v New York City Tr. Auth.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

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

The order, insofar as appealed from by plaintiff, upon granting plaintiff's motion for a default judgment in the principal sum of $2,077.55 plus statutory interest, severed plaintiff's demand for an award of attorney's fees and limited the statutory interest to interest accruing from the date of the order. The order, insofar as cross-appealed from by defendant, granted plaintiff's motion for a default judgment in the principal sum of $2,077.55 plus statutory interest and denied defendant's cross motion to dismiss the complaint as abandoned.

ORDERED that the order, insofar as cross-appealed from by defendant, is reversed, without costs, plaintiff's motion for a default judgment is denied and defendant's cross motion to dismiss the complaint is granted; and it is further,

ORDERED that plaintiff's appeal is dismissed as moot.

Plaintiff commenced this action in 1993 to recover assigned first-party no-fault benefits. Defendant defaulted in answering, and, more than 12 years later, plaintiff moved for a default judgment in the principal sum of $2,077.55, statutory interest calculated from the action's commencement, and an award of attorney's fees. Defendant cross-moved to dismiss the complaint as abandoned (see CPLR 3215 [c]). The Civil Court denied the cross motion, and granted plaintiff's motion to the extent of awarding plaintiff a default judgment in the principal sum of $2,077.55, but limited the statutory interest to interest accruing from the date of the order and severed the claim for attorney's fees. Plaintiff appeals from so much of the order as limited the interest awarded and severed its claim for attorney's fees, and defendant cross-appeals from so much of the order as denied its cross motion and granted of the branch of plaintiff's motion seeking a default judgment in the principal sum of $2,077.55 plus statutory interest.

A party who fails to initiate a proceeding for the entry of a default judgment within a year of the default must establish a reasonable excuse for the delay and "demonstrate that the complaint is meritorious, failing which the court . . . on motion, must dismiss the complaint as abandoned" (Valentin Avanessov, M.D., P.C. v Progressive Ins. Co., 31 Misc 3d 139[A], 2011 NY Slip Op 50778[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see e.g. Giglio v NTIMP, Inc., 86 AD3d 301, 308 [2011]; Butindaro v Grinberg, 57 AD3d 932 [2008]; Staples v Jeff Hunt Devs., Inc., 56 AD3d 459, 460 [2008]).

Plaintiff submitted "neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim" (Eagle Surgical Supply, Inc. v QBE Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51455[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). The complaint, to which the claim forms at issue were not attached, was signed by an attorney without personal knowledge of the facts of the claims asserted therein (e.g. Solano v Castro, 72 AD3d 932, 933 [2010]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). The only proof in relation to those claims was a "schedule" of the dates and amounts of the bills for the services provided to each assignor, which was insufficient to establish, for purposes of the entry of a default judgment, that the claims were even "potentially" meritorious (Giglio v NTIMP, Inc., 86 AD3d at 308).

We further find that plaintiff failed to establish a reasonable excuse for the delay (e.g. DuBois v Roslyn Natl. Mtge. Corp., 52 AD3d 564, 565 [2008]). Plaintiff's affidavits asserted only that, in 1993, plaintiff's attorney neglected this and other actions, that counsel was discharged, and that "over many months in 1995 and 1996" files were transferred to new counsel, and that new counsel was unable to locate the court file. Yet another counsel was substituted in June of 2003, without any action having been taken on the claim, and there is no explanation for plaintiff's inaction in the six and one-half year period between the end of 1996 and June of 2003. Plaintiff cited the death of the principal of new counsel, in December 2003, and the necessity of new counsel to be assigned to handle the case, but offered no factual representations as to how long the instant case languished before new counsel was empowered to pursue the case. Finally, plaintiff did not reveal when the court file had finally been located, only that it had occurred "recently," and offered no accounting of the time between its discovery and the filing of the motion for entry of a default judgment in March of 2005. To the extent that these representations assert a claim of law office failure or of circumstances beyond plaintiff's control with respect to filing a motion for a default judgment, they are, for the most part, "conclusory and unsubstantiated" (Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 784 [2008]), and failed to establish sufficient cause for the delay.

Accordingly, the order, insofar as cross-appealed from by defendant, is reversed, plaintiff's motion for a default judgment is denied, and defendant's cross motion to dismiss the complaint is granted. Plaintiff's appeal is dismissed as moot.

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

Decision Date: March 28, 2012

20120328

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