In Kim v Wilson, the Second Department Appellate Division addressed the requirements needed to have an “abandoned complaint” dismissed. The lawsuit stemmed from a car accident in August 2007. The defendant was personally served with the summons and complaint in December 2010, but failed to answer – and the plaintiff never moved for a default judgment. More than four years later, in July 2015, the defendant moved to dismiss the complaint as abandoned pursuant to CPLR 3215 (c). But the Queens County Supreme Court denied the defendant’s motion because the plaintiff’s attorney had died in May 2015, which stayed the case.

On appeal, the Appellate Division quoted CPLR 3215(c) which 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 . . . unless sufficient cause is shown why the complaint should not be dismissed” (emphasis added).

The Court ruled that the “shall dismiss” language of CPLR 3215(c) is not discretionary, but mandatory when default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned.

The Court considered the possible showing of “sufficient cause” to support an excuse for failing to move for default judgment within one year, but noted this required the plaintiff to “demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action.”

The Appellate Division ruled that there was no reasonable excuse offered, and that the death of the plaintiff’s former attorney and the automatic stay of the proceeding did not constitute a reasonable excuse because the plaintiff’s former attorney died in May 2015, almost three and a half years after the one-year statutory time period had expired.  The Court thus reversed the decision to deny the defendant’s motion to dismiss the complaint as abandoned and strictly adhered to the statutory language of CPLR 3215.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.