Diaz v. Perez

• Decision Date: 09 January 2014
• Citation: 2014 N.Y. Slip Op. 00164,980 N.Y.S.2d 69,113 A.D.3d 421
• Court: New York Supreme Court — Appellate Division
• Parties: Kelvin DIAZ, Plaintiff–Appellant, v. Federico PEREZ, D.D.S., et al., Defendants–Respondents.

113 A.D.3d 421

980 N.Y.S.2d 69

2014 N.Y. Slip Op. 00164

Kelvin DIAZ, Plaintiff–Appellant,

v.Federico PEREZ, D.D.S., et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Jan. 9, 2014.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.

GONZALEZ, P.J., TOM, RENWICK, MANZANET–DANIELS, FEINMAN, JJ.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered February 25, 2013, which, in an action alleging dental malpractice, denied plaintiff's motion for a default judgment, and sua sponte dismissed the complaint, unanimously affirmed, without costs.

Personal jurisdiction was never obtained over the individual defendant Federico Perez, as Perez was never personally served with the summons and complaint, as required by CPLR 306–b. Therefore, there was no basis upon which to enter a default judgment against Perez, and there exists no reason to disturb the dismissal of the complaint as against him. Plaintiff's argument that Perez, a dentist, should be estopped from arguing nondiligent efforts to effect service upon him since he failed to amend information regarding his resident address, as required by the professional licensing statute (Education Law § 6502[5] ), is unpreserved ( see Moreira–Brown v. City of New York, 109 A.D.3d 761, 971 N.Y.S.2d 527 [1st Dept. 2013] ). In any event, the estoppel argument fails since plaintiff offers no details regarding any efforts to effect service upon Perez other than a single attempt.

The record further demonstrates that while defendant dental practice was properly served with a copy of the pleadings via the Secretary of State, more than one year transpired from the dental practice's default in appearing. Accordingly, the complaint is deemed abandoned “unless sufficient cause is shown why the complaint should not be dismissed” (CPLR 3215[c]; see Utak v. Commerce Bank Inc., 88 A.D.3d 522, 930 N.Y.S.2d 575 [1st Dept. 2011]; Pack v. Saldana, 178 A.D.2d 123, 577 N.Y.S.2d 12 [1st Dept. 1991] ). Although plaintiff demonstrated potential merit to a dental malpractice claim based on an affirmation from an expert, plaintiff failed to provide a reasonable excuse for waiting almost a year after the one-year limitation period had expired before moving for a default judgment ( see Utak at 523, 930 N.Y.S.2d 575;cf. LaValle v. Astoria Const. & Paving Corp., 266 A.D.2d 28, 697 N.Y.S.2d 605 [1st Dept. 1999] ).