The following papers numbered 1 to 20read on this motion by the defendant Gildo R. Lozcano and Edgar Seguarda pursuant to CPLR 3215(c) and 3211(a)(8) dismissing the complaint; on the cross motion by the plaintiff for an order directing the entry of judgment against the defendants Gildo R. Lozcano and Edgar Seguarda upon their default and that the matter be placed on the inquest calendar; and on the cross motion by the defendants/third-party plaintiffs for a default judgment against the third-party defendants.

Papers Numbered

Notice of Motion - Affidavits - Exhibits........................................1-4

Notices of Cross Motion - Affidavits - Exhibits.............................5-13

Answering Affidavits - Exhibits.....................................................14-18

Reply Affidavits..............................................................................19-20

Upon the foregoing papers, it is ordered that the motion and cross motions are determined as follows:

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff as a result of a motor vehicle accident. The subject accident occurred on November 20, 2005, at the intersection of 34th Avenue and 102nd Street, Queens County, New York.

The main action was commenced by the plaintiff with filing of her summons and verified complaint on September 25, 2006. The plaintiff filed an affidavit of service for the defendant Gildo R. Lozcano on October 17, 2006, which indicated that service was made on October 11, 2006. The plaintiff also filed affidavits of service for the defendants Suspend Cab Corp. and [*2]Jean Andre Aine. The defendants Suspend Cab Corp. and Jean Andre Aine interposed verified answer on or about December 4, 2006.

The motion by the defendant Edgar Seguarda to dismiss is granted. The plaintiff has not provided any evidence of service upon the defendant Edgar Seguarda. Therefore, dismissal of the complaint is warranted against the defendant Edgar Seguarda as the plaintiff did not effect service of the summons within 120 days after filing the action (CPLR 306-b; see, Garcia v Simonovsky, 62 AD3d 655 [2nd Dept. 2009]).

Turning next to the branch of the motion to dismiss the complaint against Gildo Lozcano pursuant to CPLR 3215(c), an action is deemed abandoned when a plaintiff does not seek a default judgment within one year after a defendant's alleged default in appearing or answering (CPLR 3215[c]; United Custom Made Furniture, Inc. v Fishkin, 4 AD3d 412 [2nd Dept. 2004]). To avoid dismissal a plaintiff must submit a reasonable excuse for the delay in seeking a default judgment and demonstrate a meritorious cause of action (London v Iceland Inc., 306 AD2d 517 [2nd Dept. 2003]; Piccirillo v Greenspan, 291 AD2d 486 [2nd Dept. 2002]). Here, the action against the defendant Gildo R. Lozcano should be dismissed as the plaintiff failed to come forth with a reasonable excuse for the delay in seeking a default judgment.

First, the plaintiff counsel's argument that the fault for the abandonment of the case lies with insurance company for stating that it would not defend the action is without merit. The plaintiff's counsel had no reason to stop prosecuting the action when he received the letter from the insurance company indicating they were not defending the action. Nothing prevented the plaintiff from seeking a default action against the defendants even if the insurance company was disclaiming coverage. Furthermore, notwithstanding the insurance company's disclaimer the defendant still had the right to defend the action himself. The insurance company's disclaimer, therefore, does not excuse the plaintiff's failure to proceed.

Second, there is also no merit to plaintiff 's contention that the action was stayed and the statute of limitations tolled as a matter of law against defendants Gildo R. Lozcano and Edgar Seguarda for leaving New York State. It appears that the plaintiff is arguing that she should get protection from CPLR 207. CPLR 207 imposes a toll to specific classes of defendants who are outside the State, not only to the time within whin which an action must be commenced, but also for the time deadlines for serving process and filing proof of service with a court. However, inasmuch as there is no evidence that the defendants actually left New York State, the plaintiff failed to prove that CPLR 207 is applicable (see, Shelkowitz v Rainess, 57 AD3d 337 [1st Dept. 2008]). Furthermore, the tolling provision of CPLR 207 does not apply in cases, such as here, where service may be obtained over an out-of-state defendant through use of a long-arm statute (Salamon v Friedman, 11 AD3d 700 [2nd Dept. 2004]; San Roman v Estate of Paige, 273 AD2d 456 [2nd Dept. 2000]).

Here, service could have been made pursuant to Vehicle and Traffic Law section 254. Vehicle and Traffic Law sections 253 and 254 confer authority upon the New York Secretary of [*3]State to accept service of process, by operation of law, by motorists who drive through New York State [VTL § 253] or who absent themselves from New York State [VTL § 254]. The plaintiff is correct in arguing that VTL section 253 does not apply on its own because the defendants Gildo R. Lozcano and Edgar Seguarda were residents of New York State and not "non-residents" at the time of the accident. However, the service provisions of VTL section 253 are applicable under VTL section 254 to a resident who departs New York State subsequent to the accident.

Third, the plaintiff's claim of extenuating circumstances is not sufficient to excuse her delay in prosecuting. The plaintiff claims that after witnessing a murder in December 2006, she left New York City and could not communicate with anyone for several years because of threats to her life. She indicated that she started returning to New York City as the criminal case prepared to go to trial in the summer of 2009. However, during the time period that she claims she was not in contact with her attorney, other activity in this case was taking place. The plaintiff's counsel filed an amended verified complaint in April 2008. The plaintiff's counsel served a bill of particulars in April 2009. Therefore, the plaintiff cannot be excused for failing to seek a default judgment against the defendant Gildo R. Lozcano. In any event, the plaintiff still waited almost a year after she started returning to New York City and five months after the defendants moved to dismiss the case as abandoned before taking any action in seeking a default judgment.

In light of the determination above dismissing the complaint against the defendants Gildo R. Lozcano and Edgar Seguarda, the cross motion by the plaintiff for a default judgment against the defendants Gildo R. Lozcano and Edgar Seguarda is denied.

Finally, the cross motion by the third-party plaintiffs is denied as the third-party plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge (CPLR 3215[f]; see, Blam v Netcher, 17 AD3d 495 [2nd Dept. 2005]). The third-party plaintiff's cross motion was based upon a complaint verified only by counsel. Inasmuch as a complaint verified by counsel amounts to nothing more than an attorney's affidavit, it was insufficient to support entry of judgment (see, Hazim v Winter, 234 AD2d 422 [2nd Dept. 1996]). The third-party plaintiffs may renew their motion for a default judgment on the submission of proper papers.

Accordingly, the Court decides the motion and cross motions as follows:

(A) the motion by the defendants Gildo R. Lozcano and Edgar Seguarda to dismiss, pursuant to CPLR 3211(a)(8) and 3215(c), is granted, and the complaint is dismissed against those defendants;

(B). the cross motion by plaintiff for a default judgment against Gildo R. Lozcano and Edgar Seguarda is denied; and

(C). the cross motion by the third-party plaintiffs for a default judgment against the third party defendants is denied with leave to renew on submission of proper papers.

Dated: September 29, 2010

J.S.C.

Appearances:

For the Plaintiff: Stuart R. Shaw, Esq., 240 Madison Ave., NY, NY 10016

For the Defendants Lozcano and Seguarda: Martin, Fallon & Mulle, by Richard C. Mulle, Esq., 100 East Carver St., Huntington, NY 11743

For the Defendants Suspend Cab Corp. and Aine: Baker, McEvoy, Morrissey & Moskovits, P.C., by Bhumika P. Trivedi, Esq., 330 West 34th St., NY, NY 10001