Maidenbaum v. Ellis Hospital
| Decision Date | 20 February 1975 |
| Citation | 364 N.Y.S.2d 233,47 A.D.2d 683 |
| Parties | Joseph MAIDENBAUM, Individually and as Executor of the Estate of Evelyn Maidenbaum, Deceased, Appellant, v. ELLIS HOSPITAL et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Rosenblum & Leventhal, Albany (Paul R. Kietzman, Albany, of counsel), for appellant.
Martin, Clearwater & Bell, Syracuse (John Ganotis, Syracuse, of counsel), for respondents.
Before HERLIHY, P.J., and GREENBLOTT, SWEENEY, KANE and MAIN, JJ.
Appeal from an order of the Supreme Court at Special Term, entered December 3, 1973 in Schenectady County, which dismissed the complaint and the action against the defendant Thomas H. Mason, M.D., upon the ground that the plaintiff had failed to enter judgment within one year from default pursuant to subdivision (c) of section 3215 of the CPLR.
On or about July 31, 1973 the defendant moved to dismiss the action upon the grounds that the court did not have personal jurisdiction over the defendant, Mason, and that the action was now barred by the Statute of Limitations or, in the alternative, for a dismissal of the action for failure to serve a complaint pursuant to subdivision (b) of CPLR 3012. The plaintiff answered the motion by stating that due service of a summons had been made upon the defendant, Mason, within the appropriate period required by the Statute of Limitations, and that the defendant, Mason, had never appeared or demanded a complaint and, accordingly, there had been no failure to serve a complaint.
It is apparent from the court's decision that it made no determination of any issues presented by the affidavits in support of the motion and the affidavit in opposition thereto but instead proceeded Sua sponte pursuant to the provisions of subdivision (c) of section 3215 of the CPLR to dismiss. Section 3215 of the CPLR provides for default judgments and subdivision (c) thereof provides that where a plaintiff fails for one year to proceed for the entry of default judgment after a default, the court 'shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.' The record before Special Term established upon its face that there was a basis for a dismissal of the complaint for a failure to act within the one year period following the default and, as noted, the CPLR expressly provides that the court may move on its own...
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...to the date P.B. made its default judgment motion. However, CPLR § 3215(c) is not a mandatory provision. Maidenbaum v. Ellis Hospital, 47 A.D.2d 683, 684, 364 N.Y.S.2d 233 (1975) (“[I]t is readily apparent that a dismissal is not mandatory and, indeed, may not be had where the plaintiff est......
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