Wednesday, March 19, 2014

Dismissal of a complaint as abandoned.

Practice point:  To avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c), a plaintiff must offer a reasonable excuse for the delay and must demonstrate that the complaint is meritorious.  Here, plaintiff's excuse of law office failure was vague, conclusory, and unsubstantiated, and so it was insufficient to explain the extended delay in moving to enter a default judgment. The court will not consider additional allegations regarding the law office failure if they are submitted for the first time in the
plaintiff's reply affirmation.

Student note:  CPLR 3215(c), entitled "Default not entered within one year," 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."

Case: GMAC v. Minewiser, NY Slip Op 01581 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Vacating a default judgment.