Phillips Lytle LLP, Rochester (Tara Ward of counsel), for appellants.

Weil & Kestenbaum, Bayside (Alan Kestenbaum of counsel), for respondent.

Order, Supreme Court, Bronx County (Adrian N. Armstrong, J.), entered March 2, 2022, which denied plaintiffs' motion for a default judgment and an order of reference and dismissed the action, unanimously affirmed, without costs.

Plaintiffs commenced this action to recover tax liens against a residential property owned solely by defendant Rita Franco, also known as Rita Ghiselli. Although Franco was not named as a defendant in the original complaint, she was served with a copy of the complaint in December 2018 after her counsel had informed plaintiffs that she was the owner and occupier of the premises, which she had inherited from her father, John Ghiselli, who died in 1984. The caption of the original complaint put all Ghiselli's heirs-at-law on notice that any interest they may have in the property could be affected by this action. In September 2019, plaintiffs served Franco with an amended complaint. In October 2019, Franco served answers to the original complaint and amended complaint, but plaintiffs' counsel formally rejected them as untimely because, as Franco does not dispute, her answers were served more than 20 days after she had been served with the amended complaint (see CPLR 320 [a]). Plaintiffs did not move for a default judgment against Franco until November 3, 2021. Supreme Court denied the motion and dismissed the action pursuant to CPLR 3215 (c), based on the view that plaintiffs' time in which to move for default (taking account of tolls and stays imposed in response to the COVID-19 pandemic) should be measured from the time of Franco's default in responding to the original complaint.^[FN1] We now affirm, but for a different reason.

Contrary to the view of the motion court, under the circumstances of this case, plaintiffs' time in which to seek a default judgment is measured from Franco's default in responding to the amended complaint, which was served in September 2019, less than a year after the service of the original complaint in December 2018 (cf. MTGLQ Invs., L.P. v Shay, 190 AD3d 527, 529 [1st Dept 2021] ["Because plaintiff did not move for a default judgment until well after one year after (the defendant's) default in responding to the original complaint, . . . dismissal was appropriate under CPLR 3215 (c)"], lv denied 37 NY3d 908 [2021]). Unlike in MTGLQ, plaintiffs' service of the amended complaint in this case, several months before the expiration of their time in which to move for a default based on Franco's failure to respond to the original complaint, could not have been an attempt to "cure a failure to timely move for a default in responding to the original complaint" (id. at 528), since no such failure existed when the amended complaint was served. Accordingly, the service of the amended complaint, which pleading superseded the original complaint and became the only complaint in the case (see Hummingbird Assoc. v Dix Auto Serv., 273 AD2d 58, 58 [1st Dept 2000], lv denied 95 NY2d 764 [2000]; Hoppenfeld v Hoppenfeld, 220 AD2d 302[*2], 303 [1st Dept 1995]), restarted the clock on plaintiffs' one-year period in which to move for a default judgment.

However, when plaintiffs' time in which to move for entry of judgment is measured from Franco's default in responding to the amended complaint, and even taking into account the pandemic-related stays and tolling that affected litigation during this period, plaintiffs' motion was still untimely. The proceedings in this action were stayed, and time limitations tolled, by a series of executive orders in effect from March 20, 2020, through November 3, 2020 (see Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67] [extending through November 3, 2020, the previously imposed toll of "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state"]; Executive Order [A. Cuomo] No. 202.72 [9 NYCRR 8.202.72] [directing that the aforesaid toll "is hereby no longer in effect as of November 4, 2020"]). Accordingly, plaintiffs are charged with the approximately five months that passed from Franco's October 2019 default to the inception of the pandemic measures in March 2020, and with the 12 months that passed from November 4, 2020, to November 3, 2021, when the motion for entry of judgment was finally made. This amounts to a total of at least 17 months, substantially exceeding the one-year period plaintiffs were afforded by CPLR 3215 (c) in which to seek entry of a default judgment.^[FN2]

We have considered and rejected plaintiffs' arguments that, notwithstanding the untimeliness of their motion, they have shown sufficient cause why the complaint should not be dismissed. In particular, plaintiffs are not entitled to benefit from a so-called "self-imposed stay" on their own conduct of this litigation after the legally imposed stay terminated. Nor is there any basis for plaintiffs' apparent position that they were excused from moving for entry of judgment against Franco, based on her default, until the other defendants in the action had also defaulted. Concur—Renwick, A.P.J., Kapnick, Friedman, Moulton, Kennedy, JJ. [Prior Case History: 74 Misc 3d 1217(A), 2022 NY Slip Op 50169(U).]