Wiscovitch v. Lend Lease (U.S.) Construction LMB Inc. , 148 A.D.3d 520 ( 2017 )

Wiscovitch v Lend Lease (U.S.) Constr. LMB Inc. (2017 NY Slip Op 01968)

Wiscovitch v Lend Lease (U.S.) Constr. LMB Inc.

2017 NY Slip Op 01968

Decided on March 16, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 16, 2017
Tom, J.P., Acosta, Richter, Manzanet-Daniels, Kahn, JJ.

3291 151274/13

[*1]Arthur Wiscovitch, Plaintiff-Appellant,

v

Lend Lease (U.S.) Construction LMB Inc. formerly known as Bovis Lend Lease LMB, Inc., et al., Defendants-Respondents.

Kazmierczuk & McGrath, Forest Hills (Joseph Kazmierczuk of counsel), for appellant.

Cerussi & Spring, P.C., White Plains (Christa D'Angelica of counsel), for respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered December 9, 2015, which granted defendants' motion to dismiss the complaint as abandoned, unanimously affirmed, without costs.

The motion court providently exercised its discretion in dismissing the complaint as abandoned (see CPLR 3215). Plaintiff did not establish a viable excuse for the delay in moving for a default judgment against defendants, nor demonstrate a meritorious cause of action (see Utak v Commerce Bank Inc., 88 AD3d 522 [1st Dept 2011]). Any indeterminate extensions of time to answer the complaint ended by March 17, 2014, more than a year before the motion, after plaintiff wrote to defendants asking defendant LIC Site B2 Owner, L.L.C. to answer within two weeks, and informing defendant Lend Lease (U.S.) Construction LMB Inc. that it was in default (see Zenzillo v Underwriters at Lloyd's London, 78 AD3d 1540 [4th Dept 2010]). Furthermore, the excerpt of deposition testimony given by plaintiff in another action, which merely reflects that he sustained a work-related injury at a construction site, for which one of the defendants was a general contractor, does not establish a meritorious claim.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 16, 2017

CLERK