Sarasota, Inc. v. Finkel

Oct 28, 2004
Versions:11 A.D.3d 407
784 N.Y.S.2d 50
2004 N.Y. App. Div. LEXIS 12706

Order, Supreme Court, New York County (Ira Gammerman, J.), entered April 11, 2003, which, to the extent appealed from as limited by the brief, denied defendants’ cross motion to dismiss the complaint for failure to enter a default judgment within one year pursuant to CELR 3215 (c), unanimously affirmed, without costs.

The court properly held that CPLR 3215 is not applicable to this case. Plaintiff s failure was not a failure to move for a default judgment but a failure to submit a money judgment to the Clerk for entry. Moreover, the court properly exercised its discretion pursuant to 22 NYCRR 202.48 in denying the motion to dismiss on that ground and permitting the judgment to be entered despite the long delay (see also Peerless Ins. Co. v Casey, 194 AD2d 411, 412 [1993] [seven-year delay in entering money judgment resulted not in dismissal but in calculation of interest from belated date of entry]).

Reargument granted, and upon reargument, the decision and order of this Court entered herein on May 20, 2004 (7 AD3d 421 [2004]) is hereby recalled and vacated. Concur—Tom, J.P., Saxe, Ellerin, Lerner and Gonzalez, JJ.