Opinion
Index No. 160352/2020
10-06-2023
TD Bank, NA, Plaintiff, v. Hello Tickets LLC and Steven R Coll, Defendants.
Smith Carroad Wan & Parikh, P.C., Smithtown, NY (Pragna Parikh of counsel), for plaintiff. No appearance for defendants.
Unpublished Opinion
Smith Carroad Wan & Parikh, P.C., Smithtown, NY (Pragna Parikh of counsel), for plaintiff.
No appearance for defendants.
Hon. Gerald Lebovits, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 were read on this motion for DEFAULT JUDGMENT.
This is an action on a promissory note and guarantee, brought by plaintiff, TD Bank, NA, against defendant-borrower, Hello Tickets LLC, and defendant-guarantor, Steven R. Coll. Plaintiff moves without opposition under CPLR 3215 for default judgment against defendants. The motion is denied, and the action is dismissed, for failure to bring this motion within one year of defendants' defaults.
DISCUSSION
1. A plaintiff moving for default judgment is required to establish proper service, defendant's default, and the facts constituting plaintiff's claim. (CPLR 3215 [f].) The record reflects that service on defendants, although effected by valid methods, was untimely. Plaintiff asks this court grant an extension of its time to serve under CPLR 306-b, nunc pro tunc, and deem defendants to have been validly served. The request is granted. The affirmation of plaintiff's counsel, supplies a detailed timeline of plaintiff's diligent efforts to serve both defendants, supported by documentary evidence. (See NYSCEF No. 11 at ¶¶ 4-11, 13-17.) This showing warrants extensions of the applicable service deadlines.
2. Although plaintiff has validly served defendants, it failed to seek entry of default judgment within one year after defendants' respective defaults, as CPLR 3215 (c) requires.
With respect to guarantor, plaintiff served him by the nail-and-mail method of CPLR 308 (4) in March 2021. (See NYSCEF No. 3 [affidavit of service].) Given that method, service on guarantor was complete 10 days after the filing of the affidavit of service. The affidavit of service was filed on July 30, 2021, making service complete on August 9, 2021. Guarantor then had 30 days from the completion of service to appear and respond (CPLR 320 [a]), making his deadline September 8, 2021.
Plaintiff thus did not comply with CPLR 308 (4)'s requirement that proof of service be filed within 20 days of mailing. The court exercises its discretion to overlook this nonprejudicial procedural irregularity.
On August 26, 2021, before guarantor's deadline to appear had expired, plaintiff asked the Clerk to enter default judgment against guarantor under CPLR 3215 (a). (See NYSCEF No. 5.) On September 7, 2021-still prior to guarantor's appearance deadline-the Clerk declined to enter judgment because the affidavit of service had been filed late. Plaintiff did not then promptly file a default-judgment motion with this court. Instead, plaintiff took no action with respect to guarantor until it filed the current motion on May 19, 2023-20 months later. (See NYSCEF No. 10.)
With respect to borrower, plaintiff served it under CPLR 311 through delivery to an authorized agent on November 2, 2021. (See NYSCEF No. 8 [affidavit of service].) Borrower's deadline to appear was therefore November 22, 2021. (See CPLR 320 [a].) After borrower failed to appear, plaintiff did not seek default judgment against borrower until it brought this motion in May 2023-nearly 18 months after borrower's default. (NYSCEF No. 10.)
3. If a plaintiff does not "take proceedings for the entry of judgment within one year after [defendant's] default," the court is required to dismiss the action unless plaintiff provides "sufficient cause... why the complaint should not be dismissed." (CPLR 3215 [c].)
Although taking proceedings for the entry of judgment encompasses an unsuccessful request for entry of judgment by the Clerk (see Brown v Rosedale Nurseries, Inc., 259 A.D.2d 256, 257 [1st Dept 1999]), that does not avail plaintiff here with respect to guarantor. Plaintiff sought, and was denied, entry of judgment against guarantor before he defaulted, not after-and then took no further action within one year after the ensuing default. In these circumstances, plaintiff's claim against guarantor is subject to dismissal. (See Hebrew Home for the Aged at Riverdale v Ginsberg, 2022 NY Slip Op 31888[U], at *1-2 [Sup Ct, NY County June 9, 2022] [reaching the same conclusion in this precise scenario]); cf. Praino v Times Square Trucking Corp., 53 A.D.2d 574, 574 [1st Dept 1976] [holding that CPLR 3215 [c]'s one-year deadline is "inapplicable... since there was no default by defendant" until after filing of the proof of service, which occurred less than one year before the motion].)
Plaintiff fails to show sufficient cause why its action should not be dismissed as against either party. It is not clear from the affirmation of plaintiff's counsel whether counsel is even attempting to provide an excuse for the delay in moving for default judgment against guarantor. And with respect to borrower, the affirmation states only that the delay was due to a "failure to properly diary this matter" and a case backlog due to a "change in our office personnel within the last year." (NYSCEF No. 11 at ¶ 22.) These vague explanations-which stand in marked contrast to counsel's account of why service could not be timely completed-are not sufficient. (See Opia v Chukwu, 278 A.D.2d 394, 394 [2d Dept 2000].)
Accordingly, it is
ORDERED that plaintiff's default-judgment motion is denied, and the action is dismissed under CPLR 3215 (c), no costs; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of its entry on defendants by certified mail, return receipt requested, at their respective last-known addresses; and on the office of the County Clerk, which shall enter judgment accordingly.