State Farm Mutual Automobile Insurance Company v. Rodriguez
Decision Date | 29 November 2004 |
Docket Number | 2004-03986. |
Citation | 12 A.D.3d 662,2004 NY Slip Op 08854,784 N.Y.S.2d 875 |
Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent, v. JULIO RODRIGUEZ, Appellant. |
Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed insofar as appealed from, with costs.
"Where a defendant defaults in appearing or answering and a plaintiff fails to enter a judgment upon the default within one year thereof, the action is deemed abandoned (see CPLR 3215 [c])" (Turnbull v Summit Entertainment Corp., 300 AD2d 392, 392 [2002]). Under such circumstances, to avoid dismissal of the complaint, the plaintiff must offer a reasonable excuse for its delay and demonstrate the merits of the complaint (see CPLR 3215 [c]).
The plaintiff's delay in entering a default judgment was reasonable under the circumstances. The plaintiff's counsel notified the defendant's insurance carrier of the action within the one-year period specified in CPLR 3215 (c) and the carrier indicated that it was attempting to confirm coverage (see Rivera v Shlagbaum, 204 AD2d 524 [1994]; Ingenito v Grumman Corp., 192 AD2d 509, 510-511 [1993]; Hinds v 2461 Realty Corp., 169 AD2d 629 [1991]). Furthermore, the complaint verified by the plaintiff's attorney was sufficient to constitute a sufficient affidavit of merits where, as here, the plaintiff's attorney had personal knowledge of the facts constituting the action (see CPLR 105 [u]; Martin v Zangrillo, 186 AD2d 724 [1992]).
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