CPLR § 3215 Default judgment
Brown v Andreoli, 2011 NY Slip Op 01060 (App. Div., 1st 2011)
Order, Supreme Court, New York County (George J. Silver, J.), entered June 9, 2010, which, in an action for personal injuries arising out of a motor vehicle accident, granted plaintiff's motion for a default judgment to the extent that if defendant did not file her answer within 45 days of service of the order with notice of entry, a default judgment would be entered against her, unanimously reversed, on the law, without costs, the motion denied, and the complaint dismissed as abandoned. The Clerk is directed to enter judgment accordingly.
Plaintiff failed to demonstrate a reasonable excuse for failing to move for a default judgment until more than one year after defendant's time to answer had expired (see CPLR 3215[c]; Mejia-Ortiz v Inoa, 71 AD3d 517 [2010]). Counsel's proffered explanation for the delay in moving for a default judgment, namely health problems, did not constitute a reasonable excuse since those health problems occurred outside the one-year period in which plaintiff had to move (see Mattera v Capric, 54 AD3d 827 [2008]).
The motion court, after determining that no reasonable excuse had been established, should have dismissed the complaint as abandoned (see CPLR 3215[c]; Perricone v City of New York, 62 NY2d 661, 663 [1984]; Opia v Chukwu, 278 AD2d 394 [2000]).
Midfirst Bank v Al-Rahman, 2011 NY Slip Op 01252 (App. Div., 2nd 2011)
The Supreme Court also properly denied that branch of the appellants' motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale, as they "failed to establish that the plaintiff procured the judgment of foreclosure and sale by fraud, misrepresentation, or other misconduct" (Tribeca Lending Corp. v Crawford, 79 AD3d at 1020; see Feldstein v Rounick, 295 AD2d 398).
Further, the plaintiff's alleged failure to comply with CPLR 3215(f) did not render the judgment a nullity, or warrant excusing the appellants' default in the absence of a reasonable excuse or a potentially meritorious defense (see Neuman v Zurich N. Am., 36 AD3d 601, 602; Araujo v Aviles, 33 AD3d 830; Coulter v Town of Highlands, 26 AD3d 456, 457).
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