Opinion
2010-45 Q C.
Decided July 8, 2011.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered July 21, 2009. The order, insofar as appealed from, denied the branch of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3215 (c).
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
PRESENT: WESTON, J.P., PESCE and RIOS, JJ.
In this action to recover assigned first-party no-fault benefits, an answer was filed in November 2003. In February 2004, plaintiff moved for leave to enter a default judgment, arguing that "[t]here has been no Answer interposed to date, nor has an extension of time to answer been requested or granted." By order entered March 2, 2004, plaintiff's motion was granted, on default. In April 2006, defendant moved to preclude plaintiff from offering evidence at trial due to its failure to respond to defendant's discovery demands. By a so-ordered stipulation dated April 11, 2006, the parties agreed to a discovery schedule. On the same date, plaintiff served defendant with notice of entry of the March 2, 2004 default order. Thereafter, defendant moved to, among other things, vacate the default order and dismiss the complaint as abandoned pursuant to CPLR 3215 (c). By order entered July 21, 2009, the Civil Court granted the branch of defendant's motion seeking to vacate the default judgment and denied the branch of defendant's motion seeking to dismiss the complaint. This appeal by defendant ensued.
Defendant argues that since plaintiff failed to take proceedings for the entry of judgment within one year after the March 2, 2004 default order, it is entitled to the dismissal of the complaint pursuant to CPLR 3215 (c). However, defendant's conduct in engaging in discovery, as evidenced by the April 11, 2006 stipulation, acted as a waiver of any right it may have had to the dismissal of the complaint pursuant to CPLR 3215 (c) ( see Gilmore v Gilmore, 286 AD2d 416; Sutter v Rosenbaum, 166 AD2d 644, 645; Myers v Slutsky, 139 AD2d 709, 710). Consequently, the Civil Court did not improvidently exercise its discretion in denying the branch of defendant's motion seeking to dismiss the complaint as abandoned.
Accordingly, the order, insofar as appealed from, is affirmed.
Weston, J.P., Pesce and Rios, JJ., concur.