Appeal from an order of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), dated November 5, 2008. The order granted plaintiff's motion to vacate the dismissal of the action and restore the case to the trial calendar.

Order reversed without costs and plaintiff's motion to vacate the dismissal of the action and restore the case to the trial calendar denied.

In August 2002, plaintiff commenced this subrogation action, and defendant Parking Systems Valet Service served its answer on plaintiff in December 2002. Defendant, however, did not file its answer with the District Court, and, in November 2003, the court dismissed the complaint as abandoned, pursuant to CPLR 3215 (c), based upon plaintiff's failure to have sought entry of a default judgment within one year after the default. In December 2005, plaintiff responded to defendant's discovery requests and filed its notice of trial in November 2007. Upon filing the notice of trial, plaintiff was informed that the case had been dismissed in November 2003. In October 2008, plaintiff moved to vacate the dismissal of the action and restore the case to the trial calendar, but did not submit an affidavit of merit in support of its motion. By order dated November 5, 2008, the District Court granted plaintiff's motion, noting that:
"The documentation in the court file demonstrates that the defendant [*2]answered the complaint in December 2002, prior to the Court's dismissal of the action on 11-23-03 pursuant to CPLR 3215 c. Inasmuch as the Court file contains no answer in it, the court finds that the dismissal pursuant to CPLR 3215 c was unwarranted and inadvertent. The failure to file the answer with the court, frequently results in this factual scenario. Consequently, the Court reinstates the summons and complaint."
Defendant appeals, arguing that plaintiff's motion should not have been granted since plaintiff failed to submit an affidavit of merit.

CPLR 3215 (c) provides in pertinent part:
"If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion."

Plaintiff argues that issue was joined when defendant served its answer, that no default occurred herein, and, therefore, that CPLR 3215 (c) was inapplicable. While plaintiff's summons does not contain the required statement that "[y]ou are required to file a copy of your answer together with proof of service with the clerk of the district in which the action is brought within ten days of the service of the answer," as mandated by Uniform Civil Rules for District Courts (22 NYCRR) § 212.6, nevertheless, since the court rules required defendant to file its answer, defendant was in default when it failed to do so (cf. Ryan v Rocky Grazino Foods, Inc., 75 Misc 2d 415 [1973] [the defendant was not in default since no statute or rule required him to file his answer]), and the action was properly dismissed pursuant to CPLR 3215 (c) upon plaintiff's default in proceeding to enter judgment within the prescribed one-year time period.

Under the circumstances presented, plaintiff was required to show the merit of its complaint and a reasonable excuse for its delay (see Araujo v Aviles, 33 AD3d 830 [2006]). Since plaintiff's moving papers did not include an affidavit of merit or any allegations establishing the merit of its complaint, the District Court improperly granted plaintiff's motion. Accordingly, the order is reversed and plaintiff's motion to vacate the dismissal of the action and restore the case to the trial calendar is denied.

Rudolph, P.J., Molia and Nicolai, JJ., concur.
Decision Date: June 29, 2009