Summary
In Gilmore v. Gilmore, 286 A.D.2d 416 (2d Dept.2001), the Court held that the plaintiff established a reasonable excuse for failing to timely move for a default judgment against the defendant.
Summary of this case from Kelley v. GarudaOpinion
Argued June 15, 2001.
August 20, 2001.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Marano, J.), dated July 21, 2000, as denied those branches of his motion which were for leave to amend the answer and to dismiss the complaint pursuant to CPLR 3215 on the ground that the plaintiff failed to timely move for a default judgment based on his failure to serve and file an amended answer to the amended complaint and granted that branch of the plaintiff's motion which was for an interim attorney's fee in the sum of $25,000.
Jerry Winter, P.C., Garden City, N.Y., for appellant.
Kruman Kruman, P.C., Malverne, N.Y. (Henry E. Kruman of counsel), for respondent.
Before: Sondra Miller, J.P., Howard Miller, Robert W. Schmidt, Barry A. Cozier, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff established a reasonable excuse for failing to timely move for a default judgment against the defendant pursuant to CPLR 3215. The plaintiff continued to proceed with the action and did not abandon her complaint. The plaintiff's delay in entering a default judgment was caused by the defendant's repeated failure to comply with discovery demands and orders (see, CPLR 3215[c]; Home Sav. of Am., F.A. v. Gkanios, 230 A.D.2d 770; Flora Co. v. Ingilis, 233 A.D.2d 418). In addition, the defendant's conduct, including his submission of an answer to the original complaint and other involvement in the action, acted as a waiver of any right he may have had to dismissal of the complaint pursuant to CPLR 3215 (see, Sutter v. Rosenbaum, 166 A.D.2d 644; Myers v. Slutsky, 139 A.D.2d 709).
The defendant failed to establish a reasonable excuse for not submitting an amended answer pursuant to CPLR 3012(d) (see, Blackman v. Blackman, 131 A.D.2d 801; Spatz v. Bajramoski, 214 A.D.2d 436).
The trial court providently exercised its discretion in awarding the plaintiff an interim attorney's fee in the sum of $25,000 (see, Landau v. Landau, 258 A.D.2d 508; Cacio v. Cacio, 236 A.D.2d 574).
The defendant's remaining contentions were addressed by this court in Gilmore v. Gilmore ( 279 A.D.2d 506).