Funk v. Barry , 635 N.Y.S.2d 909 ( 1995 )

—Order unanimously reversed on the law without costs, motion denied, cross motion granted and complaint dismissed. Memorandum: Following a bench trial, Supreme Court found in favor of plaintiff in the amount of $5,000 on his cause of action against defendants for conversion. Eleven months later, plaintiff’s attorney submitted to defendants’ attorney a proposed judgment, which defendants’ attorney rejected as untimely. Plaintiff moved for an order permitting entry of the judgment and defendants cross-moved for an order dismissing the action as abandoned pursuant to 22 NYCRR 202.48. The court granted plaintiffs motion and denied defendants’ cross motion. We reverse.

In Hickson v Gardner (134 AD2d 930), this Court held that 22 NYCRR 202.48 applies to judgments that did not require the signature of the court. In that case, we held that the court may allow the filing of an untimely judgment if good cause is demonstrated (see also, Rivera v Rivera [appeal No. 2], 206 AD2d 970; Krueger v Wilde [appeal No. 2], 204 AD2d 990). Hick-son remains the law in this Department, although the First and Second Departments have interpreted 22 NYCRR 202.48 differently (see, Donovan v DiPietro, 195 AD2d 589; Winckel v Atlantic Rentals & Sales, 195 AD2d 599; Helfant v Sobkowski, 174 AD2d 340; Dicini, Inc. v Hengerer Co., 171 AD2d 515, lv dismissed in part and denied in part 78 NY2d 940; Bell v New York Higher Educ. Assistance Corp., 158 AD2d 305, mot to dismiss appeal granted 76 NY2d 845, rearg denied 76 NY2d 1015). Because plaintiff failed to demonstrate good cause for his 11-month delay in submitting a proposed judgment, the court was required to dismiss the action as abandoned. (Appeal from Order of Supreme Court, Monroe County, Siragusa, J.— Execution of Judgment.) Present — Green, J. P., Lawton, Callahan, Doerr and Davis, JJ.