McGovern v. O'Connor

Dec 21, 1998
Versions:256 A.D.2d 501
682 N.Y.S.2d 861
1998 N.Y. App. Div. LEXIS 13678

—In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated September 29, 1997, as denied their cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

Ordered that the order is affirmed insofar as appealed from, with costs.

In order to avoid a dismissal pursuant to CPLR 3215 (c), it is necessary for a plaintiff to demonstrate (1) an excuse for his failure to apply for a default judgment for over a year, and (2) the existence of a meritorious cause of action (Rendelman v Southside Hosp., 141 AD2d 521). The defendants do not argue that the plaintiff failed to demonstrate the existence of a meritorious cause of action, and the record reveals that the plaintiff did make such a showing. In addition, the plaintiff demonstrated a sufficient excuse for his failure to apply for a default judgment for over a year. Miller, J. P., Pizzuto, Mc-Ginity and Luciano, JJ., concur.