Hoppenfeld v. Hoppenfeld

• Decision Date: 19 October 1995
• Parties: Marilyn P. HOPPENFELD, etc., Plaintiff, Eileen Hoppenfeld, et al., Plaintiffs-Appellants-Respondents, v. Joan HOPPENFELD, et al., Defendants-Respondents-Appellants. John Doe, etc., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 558

632 N.Y.S.2d 558

220 A.D.2d 302

Marilyn P. HOPPENFELD, etc., Plaintiff, Eileen Hoppenfeld, et al., Plaintiffs-Appellants-Respondents, v. Joan HOPPENFELD, et al., Defendants-Respondents-Appellants.

John Doe, etc., Defendants.

Supreme Court, Appellate Division,

First Department.

Oct. 19, 1995.

R. Siegel, for plaintiffs-appellants-respondents.

C. McEnery, for defendants-respondents-appellants.

Before MURPHY, P.J., and ASCH, NARDELLI and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered May 24, 1994, which, inter alia, granted defendants' cross motion to dismiss plaintiffs' amended complaint as abandoned pursuant to CPLR 3215(c), unanimously affirmed, without costs.

The IAS court properly dismissed the amended complaint as abandoned pursuant to CPLR 3215(c) for plaintiffs' failure to seek the entry of a default judgment within ten years and eight months after defendants defaulted in interposing an answer to the amended complaint. Where, as here, plaintiffs failed to pursue a default judgment within one year of the default in answering, and failed to set forth a viable excuse for the delay and demonstrate a meritorious cause of action, dismissal of the underlying action as abandoned is required (Perricone v. City of New York, 62 N.Y.2d 661, 476 N.Y.S.2d 282, 464 N.E.2d 980; Ballin v. Ballin, 204 A.D.2d 1078, 1079, 612 N.Y.S.2d 522; Rendelman v. Southside Hosp., 141 A.D.2d 521, 521-522, 529 N.Y.S.2d 137).

Plaintiffs cannot evade their responsibility to proceed to judgment for a period of longer than ten years by claiming that defendants are responsible for the delay since the record reveals that no motion practice, scheduled deposition or any other proceeding was a barrier to obtaining a judgment on the default in interposing an answer to the amended complaint (Bevona v. Judson Realty, 213 A.D.2d 349, 624 N.Y.S.2d 416; Winkelman v. H & S Beer & Soda Discounts, 91 A.D.2d 660, 457 N.Y.S.2d 110). Nor did the filing of an answer by the defendants to the plaintiffs' original complaint render the provisions of CPLR 3215(c) inapplicable, since after the complaint was formally amended and served, it superseded the original complaint, became the only complaint in the case, and therefore required that a new responsive pleading be substituted for the original superseded answer (St. Lawrence Explosives Corp. v. Law Bros. Contracting Corp., 170 A.D.2d 957, 566 N.Y.S.2d 127).