Opinion
December 30, 1985
Appeal from the Supreme Court, Richmond County (Rubin, J.).
Order dated August 8, 1983 affirmed, insofar as appealed from.
Respondent is awarded one bill of costs.
On November 16, 1979, plaintiff commenced the instant action against Sony by service of a summons with notice upon the Secretary of State pursuant to Business Corporation Law § 306. Sony defaulted in its appearance. Plaintiff did not move to enter a default judgment until on or about March 9, 1983, more than three years after Sony's default. Sony cross-moved to dismiss the action against it upon the ground that plaintiff had failed to take proceedings to enter a default judgment within one year after its default in appearing (see, CPLR 3215 [c]).
Since plaintiff failed to seek a default judgment within one year, she was required to demonstrate the merits of her cause of action and an excuse for the delay (see, Grosso v Hauck, 99 A.D.2d 750; Winkelman v H S Beer Soda Discounts, 91 A.D.2d 660). The only excuse proffered by plaintiff for her failure to take proceedings against Sony within one year after its default is that the issue of insurance coverage remained unresolved and Sony's insurance carrier had misled plaintiff into believing it would appear on Sony's behalf. At the earliest, plaintiff demonstrated concern with this issue on or about August 17, 1981, when she mailed to Sony's insurance carrier a copy of the summons with notice and demanded a notice of appearance. About 20 months elapsed between Sony's default and the mailing to Sony's insurance carrier. Therefore, plaintiff's time to enter a default judgment with the Clerk had already expired. An excuse which matures after the expiration of the statutory limit for entering a default judgment with the Clerk is legally insufficient to justify a plaintiff's failure to enter the default judgment. Accordingly, Special Term properly granted Sony's cross motion to dismiss the action as to it (see, Perricone v City of New York, 62 N.Y.2d 661; Finan v Queens Tr. Corp., 100 A.D.2d 951). Lazer, J.P., Thompson, O'Connor, Rubin and Kunzeman, JJ., concur.