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Complaint Can Not Be Deemed Dismissed in Absence of Final Judgment

In reversing Supreme Court, the Second Department determined a complaint had not been dismissed because no final judgment dismissing the complaint had been entered after an order vacating a default:

…[T]he Supreme Court issued an order granting the defendant’s motion to vacate his default in appearing and answering the complaint on the ground of lack of personal jurisdiction. However, no judgment dismissing the complaint on the ground of lack of personal jurisdiction was entered. The plaintiff subsequently moved to extend her time to serve the defendant with process in the action. …[T]he court denied the plaintiff’s motion on the ground that its prior order had dismissed the action and, thus, there was no pending action in which to grant an extension of time for service of process … . On her appeal from the August 13, 2012, order, the plaintiff contends that, inasmuch as there was no judgment dismissing the action, the action was pending when she moved to extend the time to serve the defendant with process. We agree. An action is deemed pending until there is a final judgment (see CPLR 5011…)… .  Cooke-Garrett v Hoque, 2013 NY Slip Op 05554, 2nd Dept 8-7-13

 

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