Opinion
2015-03-3
Marie Carole SEIDE, et al., Plaintiffs–Appellants, v. Alberto CALDERON, et al., Defendants–Respondents.
Law Offices of Laurence Jeffrey Weingard, New York (Mitchell F. Senft of counsel), for appellants. Law Office of John Trop, Yonkers (David Holmes of counsel), for respondent.
Law Offices of Laurence Jeffrey Weingard, New York (Mitchell F. Senft of counsel), for appellants. Law Office of John Trop, Yonkers (David Holmes of counsel), for respondent.
Appeal from order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 3, 2013, which denied plaintiffs' motion for a default judgment against defendants, and granted defendants' cross motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c), deemed appeal from judgment, same court and Justice, entered February 7, 2014, and, so considered, the judgment unanimously affirmed, without costs.
We exercise our discretion under CPLR 5520(c) to deem the appeal from the order as taken from the subsequent judgment, because the relief granted by the judgment is identical to that granted in the order ( see Gutman v. Savas, 17 A.D.3d 278, 278–279, 793 N.Y.S.2d 424 [1st Dept.2005] ).
The motion court providently exercised its discretion in dismissing the complaint as abandoned, because plaintiffs failed to demonstrate a reasonable excuse for waiting over a year after the expiration of the one-year limitation period before moving for a default judgment ( see CPLR 3215[c]; Diaz v. Perez, 113 A.D.3d 421, 422, 980 N.Y.S.2d 69 [1st Dept.2014] ). Plaintiffs' unsubstantiated excuses are insufficient ( see Butindaro v. Grinberg, 57 A.D.3d 932, 933, 871 N.Y.S.2d 317 [2d Dept.2008]; Brodmerkel v. James McCullagh Co., Inc., 46 A.D.3d 853, 853, 847 N.Y.S.2d 867 [2d Dept.2007], lv. dismissed10 N.Y.3d 821, 858 N.Y.S.2d 647, 888 N.E.2d 388 [2008] ). TOM, J.P., FRIEDMAN, RENWICK, MANZANET–DANIELS, FEINMAN, JJ., concur.