Friday, January 12, 2007

Q. When do you lose even when you win?
A. When you don't timely enter.

Plaintiffs did not move within one year, as required by CPLR 3215(c), for leave to enter a default judgment after the defendant had failed to answer the complaint. To defeat a motion to dismiss as to that defendant, they had to demonstrate a reasonable excuse for the delay and a meritorious cause of action. In Costello v. Reilly, decided on January 9, 2007, the Second Department found that plaintiffs had demonstrated neither: after a delay of more than four years, their excuse of law office failure was unsubstantiated, and the verified complaint alone could not establish a meritorious cause of action since it was verified by plaintiffs' attorney and not by plaintiffs themselves.