Josephson v State Farms Ins. Co., 2018 NY Slip Op 51132(U)(App. Term 2d Dept. 2018)
“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted a motion by defendant State Farm Insurance Company (sued herein as State Farms Insurance Company) to vacate a default judgment that had been entered on February 9, 2016, upon defendant’s failure to appear at a calendar call of the case on June 30, 2008, and to dismiss the complaint pursuant to CPLR 3215 (c) for failure to enter the default judgment within one year. Plaintiff did not rebut defendant’s motion papers by demonstrating that it had taken proceedings for the entry of a judgment within one year of defendant’s calendar default on June 30, 2008 (see CPLR 3215 [a]). As CPLR 3215 (c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but 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 Civil Court did not abuse its discretion in [*2]granting defendant’s motion to vacate the default judgment and dismiss the complaint ”
We have seen the one year period to dismiss due to the failure to tale a default judgment when a judgment it not taken within one year to answer or reply to a counterclaim. This is a new twist. When a calendar default occurs, the failure to enter a judgment within one year serves as an abandonment of the action. I have never seen this one before but I will keep this case on my short list.