SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

549 

CA 13-01832 

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ. 

 

SHANA FUENTES, PLAINTIFF-APPELLANT, 

 

V MEMORANDUM AND ORDER

KEITH A. HOFFMAN, ET AL., DEFENDANTS, 

MARIO BEVIVINO AND ANTONIA BEVIVINO, 

DEFENDANTS-RESPONDENTS.

 

ATHARI & ASSOCIATES, LLC, UTICA (NADIA ARGINTEANU OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

BAILEY, KELLEHER & JOHNSON, P.C., ALBANY (MARC J. KAIM OF COUNSEL),

FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Oneida County (Patrick

F. MacRae, J.), entered April 23, 2013. The order granted the motion

of defendants Mario Bevivino and Antonia Bevivino to dismiss the

complaint against them as abandoned. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action on October 17, 2011

seeking damages for injuries she sustained as a result of her alleged

exposure to lead-based paint as a child. Mario Bevivino and Antonia

Bevivino (defendants) owned one of the premises at which plaintiff

claimed to have been exposed to lead-based paint, and plaintiff served

defendants with the summons and complaint in this action on October

26, 2011. Defendants never joined issue; instead, on January 13,

2013, they moved to dismiss the complaint against them as abandoned

(see CPLR 3215 [c]). Supreme Court granted the motion, and we affirm.

“CPLR 3215 (c) provides that, ‘[i]f the plaintiff fails to take

proceedings for the entry of judgment within one year after the

[defendant’s] default, the court shall . . . dismiss the complaint as

abandoned . . . unless sufficient cause is shown why the complaint

should not be dismissed’ ” (Zenzillo v Underwriters at Lloyd’s London,

78 AD3d 1540, 1541; see Livingston v Livingston, 303 AD2d 975, 975). 

This Court has defined “sufficient cause” as evidence “that (1) the

failure to seek a default judgment within one year after the default

is excusable[,] and (2) the cause of action is meritorious” (Turner v

Turner, 216 AD2d 910, 911; see Dobbins v County of Erie, 58 AD2d 733,

733). 
-2- 549 

CA 13-01832 

 We reject at the outset plaintiff’s contention that defendants

were not in default, and thus that CPLR 3215 (c) does not apply. 

During oral argument on the motion, plaintiff’s attorney argued that

she did not move for a default judgment because defendants were not in

fact in default inasmuch as plaintiff had granted them an extension of

time in which to answer. Specifically, plaintiff’s attorney asserted

that it was her understanding that another attorney at the law office

that represented plaintiff had “verbally” made an “informal”

stipulation with defendants’ attorney to extend defendants’ time to

serve an answer. Plaintiff, however, failed to submit any evidence of

that alleged extension of time, and thus failed to establish that

there was any procedural impediment to pursuing a default judgment

against defendants.

Contrary to plaintiff’s alternative contention, we conclude that

the court properly determined that plaintiff’s failure to seek a

default judgment against defendants within one year after the default

is not excusable. “The determination of whether an excuse is

reasonable in any given instance is committed to the sound discretion

of the motion court” (Giglio v NTIMP, Inc., 86 AD3d 301, 308; see

Butindaro v Grinberg, 57 AD3d 932, 932-933). Here, defendants are

only two of the six defendants named in the complaint, and the record

reflects that plaintiff served discovery demands on other defendants

in June 2012 and filed a request for judicial intervention with

respect to other defendants in August 2012. By that time, plaintiff

also had contacted at least two insurance companies to investigate

whether defendants had insurance that would cover her claims for

damages. In September 2012, plaintiff had contact with an attorney

retained by defendants to represent them. Defendants’ attorney

contacted plaintiff to advise of his representation, and plaintiff

subsequently forwarded an electronic copy of the complaint to him. 

Thus, the record establishes that there was approximately 14 months

between service of the complaint on defendants and defendants’ motion

to dismiss, during which time plaintiff had minimal contact with

defendants with respect to the case. Under those circumstances, we

conclude that plaintiff failed to show “sufficient cause” why the

complaint should not be dismissed as abandoned (Zenzillo, 78 AD3d at

1541; see Livingston, 303 AD2d at 975), and that the court did not err

in granting the motion (see Ryant v Bullock, 77 AD3d 811, 811-812).

Entered: June 13, 2014 Frances E. Cafarell

Clerk of the Court