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Chi Point Acupuncture, P.C. No Avrora As Assignee of Sonya Tavares, Respondent v. Clarendon Insurance Company

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


August 6, 2012

CHI POINT ACUPUNCTURE, P.C. NO AVRORA AS ASSIGNEE OF SONYA TAVARES, RESPONDENT,
v.
CLARENDON INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 8, 2010.

Chi Point Acupuncture, P.C. v Clarendon 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2012

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

The order denied defendant's motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in May of 2008. Defendant defaulted. More than two years later, defendant moved to dismiss the complaint pursuant to CPLR 3215 (c). The Civil Court denied defendant's unopposed motion and defendant appeals.

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious, failing which the court, upon its own initiative or on motion, must dismiss the complaint as abandoned (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d 722 [2007]; Jones v Corley, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). Upon a review of the facts, and plaintiff's failure to submit opposition to defendant's motion, we find that dismissal of the complaint was required pursuant to CPLR 3215 (c).

Accordingly, the order is reversed and defendant's motion to dismiss the complaint pursuant to CPLR 3215 (c) is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: August 06, 2012

20120806

© 1992-2012 VersusLaw Inc.



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