Winkelman v. H & S Beer and Soda Discounts, Inc.
| Decision Date | 20 December 1982 |
| Citation | 457 N.Y.S.2d 110,91 A.D.2d 660 |
| Court | New York Supreme Court — Appellate Division |
| Parties | John WINKELMAN et al., Respondents, v. H & S BEER AND SODA DISCOUNTS, INC., Appellant, et al., Defendants. (and a third-party action). |
Kornfeld, Rew, Newman & Ellsworth, Suffern (Robert J. Ellsworth, Suffern, of counsel), for appellant.
Rosen Crane & Wolfson, Poughkeepsie (William G. Crane, Poughkeepsie, of counsel), for respondents.
Before GIBBONS, J.P., and O'CONNOR, RUBIN and BOYERS, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., defendant H & S Beer and Soda Discounts, Inc., appeals from an order of the Supreme Court, Dutchess County, dated September 17, 1981, which denied its motion to, inter alia, dismiss the action against it pursuant to CPLR 3215 (subd. [c] ), upon the ground of the plaintiffs' failure to enter judgment against it within one year of its default in appearing.
Order reversed, on the law and the facts, without costs or disbursements, that branch of appellant's motion which sought to dismiss the action against it for failure to enter judgment within one year of its default granted, so much of a prior order of the Supreme Court, Dutchess County (JIUDICE, J.), dated May 27, 1981, as granted plaintiffs leave to enter a default judgment against appellant vacated, and action dismissed as against appellant H & S Beer and Soda Discounts, Inc.
On July 6, 1979, plaintiffs commenced the instant action against appellant H & S Beer and Soda Discounts, Inc., by service of a summons with notice upon the Secretary of State, pursuant to section 306 of the Business Corporation Law. The notice provisions of that summons complied with the requirements of CPLR 305 (subd. [b] ). Appellant did not serve a notice of appearance. Nevertheless, plaintiffs did not move to enter a default judgment against appellant until on or about April 28, 1981. Their motion was granted by order of the Supreme Court, Dutchess County, dated May 27, 1981.
Thereafter, appellant made a motion to, inter alia, dismiss the action against it pursuant to CPLR 3215 (subd. [c] ), upon the ground that plaintiffs had failed to take proceedings to enter judgment against it within one year of its default in appearing.
Since plaintiffs failed to take proceedings to enter a default judgment against appellant within one year of its default, Special Term was required to dismiss the action against appellant as abandoned...
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