Summary
In Icon Equipment v. Gordon Environmental, 272 A.D.2d 579 (2d Dept. 2000), the Second Department rejected appellant's contention that plaintiff had abandoned its action where, within one year of appellant's default, plaintiff filed a notice of pendency with the Kings County Clerk and moved for a severance and transfer of the action from Richmond County to Kings County.
Summary of this case from NARA BANK v. L.I. FINE ANTIQUE GALLERY, INC.Opinion
May 30, 2000
In an action, inter alia, to foreclose a mechanic's lien, the defendant Gurpal Cheema appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated May 7, 1999, which denied his motion, among other things, to vacate his default in answering and, pursuant to CPLR 3215(c), to dismiss the complaint as abandoned.
Before: Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ.,
Ordered that the order is affirmed, with costs.
After a hearing on the issue of service of process, it was determined that the summons and complaint were properly served upon the appellant Gurpal Cheema pursuant to CPLR 308(1). In the absence of a showing of improper service or a meritorious excuse for the default, the appellant's motion to vacate his default in answering the summons and complaint was properly denied ( see, CPLR 5015[a][1], [4]).
Moreover, contrary to the appellant's contention, the plaintiff did not abandon the action. Within one year of the appellant's default, the plaintiff filed a notice of pendency with the Kings County Clerk and moved for a severance and a transfer of this action from Richmond County to Kings County ( see, Home Say. v. Gkanios, 230 A.D.2d 770, 771; Patterson v. Patterson, 220 A.D.2d 731, 732; Ingenito v. Grumman Corp., 192 A.D.2d 509, 510-511).