DJS Med. Supplies, Inc. v Infinity Ins. Co., 2013 NY Slip Op 52073(U)(App. Term 2d Dept. 2013)
‘Plaintiff commenced this action in April 2006 to recover assigned first-party no-fault benefits. Defendant defaulted. More than a year later, plaintiff moved for leave to enter a default judgment. By order dated July 13, 2007, the Civil Court granted plaintiff’s motion on defendant’s default.’
“[A]s plaintiff failed to offer any excuse for its delay in moving for leave to enter a default judgment, the dismissal of the complaint was required pursuant to CPLR 3215 (c), and it was improper for the court to have granted plaintiff’s motion.”
THE BEST PART OF THE OPINION
While defendant failed to demonstrate that the default judgment should have been vacated pursuant to CPLR 5015 (a) (3), under the circumstances presented, we exercise our inherent discretionary power to vacate judgments in situations that warrant vacatur but were not specifically codified in CPLR 5015 (a).
So Plaintiff was able to enter a default, on notice, after the one year time period through Defendant defaulting to oppose. Defendant wakes up, opposes entry of the default judgment, and the court vacates the default under a Woodson catch-all theory.
One Response
This holding is incorrect under the Appellate Division, Second Department’s decision in Fuentes v. Virgil, 88 A.D.3d 643, which held that a motion to dismiss under CPLR 3215(c) is untimely when made after the default judgment has already been entered.