Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 6, 2009. The order denied defendant's motion, pursuant to CPLR 3215 (c), to dismiss the complaint as abandoned.

ORDERED that the order is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, defendant failed to timely appear in the action. After more than a year had elapsed, defendant served an answer together with discovery demands on plaintiff and filed the answer with the court. About a week later, defendant served and filed an amended answer. At the same time, defendant moved, pursuant to CPLR 3215 (c), to dismiss the complaint as abandoned. The Civil Court denied defendant's motion, holding that, by serving its answer, defendant had appeared in the action and had waived its entitlement to such relief.

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." CPLR 3215 (c) applies where a defendant has not served an answer or taken any other steps which may be viewed as a formal or informal appearance (see Myers v Slutsky, 139 AD2d 709 [1988]). However, a defendant's submission of an answer and service of discovery demands act as a waiver of any right the defendant may have to the dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Gonzalez v Gonzalez, 240 AD2d 630 [1997]; Sutter v Rosenbaum, 166 AD2d 644 [1990]; Myers v Slutsky, 139 AD2d at 710). In view of the foregoing, the Civil Court properly denied defendant's motion to dismiss the complaint as [*2]abandoned pursuant to CPLR 3215 (c).

Pesce, P.J., and Weston, J., concur.

Golia, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and GOLIA, JJ.
AVIR SURGICAL SUPPLIES, INC.
as Assignee of CIGDEM DEMIRKAN,

Respondent,

-against-

NO. 2010-344 Q C

DECIDED
WINDSOR GROUP INSURANCE COMPANY,

Appellant.
Golia, J., dissents and votes to modify the order to provide that defendant's motion to dismiss the complaint as abandoned is denied as academic and the complaint is dismissed nunc pro tunc pursuant to CPLR 3215 (c).

This action was commenced by plaintiff in 2004. Defendant failed to appear in this action or file an answer to the complaint. Therefore, pursuant to CPLR 3215 (c), plaintiff's time to enter a default judgment against defendant expired in 2005.

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."

Although not specifically noted in the majority's decision, which simply states that, "After more than a year had elapsed . . . ," there was absolutely no activity in this case from 2004 until 2009, when defendant served its answer with affirmative defenses and discovery demands. Within a week of filing its initial answer, defendant filed an amended answer as of right, adding the affirmative defense of CPLR 3215 (c), along with a motion to dismiss pursuant to that section. It is important to note plaintiff did not submit opposing papers to defendant's motion to [*3]dismiss.

The Civil Court, however, never complied with the requirements of CPLR 3215 (c), not for one year or two years or even three years. That court allowed this case to languish for approximately five years, a total lapse in and of itself, when it should have dismissed this case after one year.

I am not unmindful of the cases cited by the majority, but I find that this defendant, unlike its counterparts in those cases cited, did not waive its rights under CPLR 3215 (c) by any participation in the case. It did not engage in any exchange of discovery, did not engage in any settlement conference, and did not exchange any communication. There is absolutely no indication that plaintiff has shown any prejudice or "sufficient cause . . . why the complaint should not be dismissed," especially in view of its default below in failing to submit opposing papers. Here, the only action that plaintiff took was to serve the complaint.

Indeed, this plaintiff has failed to raise any argument as to why the case should not be dismissed pursuant to CPLR 3215 (c), except for arguing that defendant filed an answer along with its motion to dismiss and therefore waived its right to dismiss under CPLR 3215 (c), when plaintiff itself is the defaulting party.

It would be inappropriate to allow this plaintiff, which defaulted below, to prosecute a case that should have been dismissed years earlier simply because after five years defendant submitted an answer along with its motion to dismiss. Accordingly, I vote to modify the order to provide that defendant's motion to dismiss the complaint as abandoned is denied as academic inasmuch as the underlying complaint should have been dismissed pursuant to CPLR 3215 (c), and I would remit the matter to the Civil Court to dismiss the complaint in accordance with my decision.
Decision Date: July 28, 2011