Plaintiff commenced this personal injury action for injuries sustained on November 8, 2009 at the defendant's location at 75-59 263rd Street, Glen Oaks, New York. Plaintiff claims that she was injured because a security guard caused a parking lot security gate to descend and strike her head as she rode her bike into a parking facility.

The defendant failed to mark the danger area by not placing a cone to alert those walking [*2]or riding a bike of the danger posed by the gate. The defendant denies liability.

The action was commenced in November of 2012 by service of a summons and complaint. Defendant served a verified answer in January in 2013, along with a demand for a verified bill of particulars and other discovery demands.

According to defendant, plaintiff took no action on the case from November 7, 2012 until November 14, 2014, when plaintiff served responses to defendant's discovery demands.

On January 31, 2014, this case appeared on the dismissal calendar. Plaintiff failed to appear and the action was dismissed.

Plaintiff submitted the order to show cause returnable February 9, 2015, seeking to restore the case to the court's calendar. Plaintiff called the District Court on January 5, 2015, and determined that the case was dismissed because the court had no record of the defendant having filed an answer. Since plaintiff failed to move to dismiss the action within one year after defendant failed to file an answer pursuant to CPLR 3215, the action was dismissed.

Plaintiff contends that the case should be restored to the calendar because plaintiff has a meritorious action based upon the affidavit of Eileen Lynch, sworn to January 21, 2015. Plaintiff never intended to abandon the action because plaintiff served a bill of particulars and responses to discovery demands in November of 2014.

Defendant opposes the order to show cause by citing Government Empls. Ins. Co. v. Parking Sys. Valet Serv., 24 Misc 3d 134(A). In Government Empls. Ins. Co., plaintiff commenced a subrogation action in August 2002 against defendant. The defendant served an answer in December 2012 but did not file an answer with the Suffolk District Court. In November 2003, the Suffolk District Court dismissed the action as abandoned pursuant to CPLR 3215(A) based upon plaintiff's failure to enter a default judgment within one year after defendant's failure to file its answer with the District Court. In December 2005, plaintiff responded to defendant's discovery requests. In November 2007, plaintiff filed its notice of trial, when plaintiff learned that the case had been dismissed. In October 2008, plaintiff moved to vacate the dismissal of the action and restore the case to the trial calendar. However, no affidavit of merit was submitted in support of the motion.

The District Court in Government Empls. Ins. Co. granted plaintiff's motion to restore the case to the calendar. The Appellate Term reversed because no affidavit of merit was submitted. The Appellate Term noted that to vacate the default, an affidavit of merit and a reasonable excuse for the delay must be presented.

In the case at bar, an affidavit of merit has been presented, but no reasonable excuse for the delay has been presented. Thus, the relief sought in plaintiff's order to show cause must be denied. See also Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d 749, 983 NYS2d 587, (2nd Dept 2014); and Mattera v. Capric, 54 AD3d 827, 864 NYS2d 98 (2nd Dept 2008).

The relief requested by the plaintiff in the order to show cause is denied. No reasonable excuse has been presented for the default. This court finds this result to be harsh and urges the plaintiff to appeal this decision.

So Ordered:

DISTRICT COURT JUDGE