Opinion
INDEX NO. 650806/2018
03-26-2019
CITIBANK, N.A. Plaintiff, v. ROBERT MCNISH, Defendant.
NYSCEF DOC. NO. 27 PRESENT: HON. ALEXANDER M. TISCH Justice MOTION DATE 11/02/2018 MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 were read on this motion to/for JUDGMENT - DEFAULT. Upon the foregoing documents, plaintiff moves for default judgment against defendant Robert McNish.
A motion for default judgment must be supported by "proof of the facts constituting the claim, the default and the amount due by affidavit made by the party" (CPLR § 3215 [f]). The Court finds that the party affidavit is insufficient. The authority of Giacomo Provenzano to make such an affidavit is unclear, as the affidavit just states that s/he is an "employee" "of Plaintiff" but fails to state who the plaintiff is. Such a standardized form could be misused by others who do not have the actual authority to make such representations as it pertains to this plaintiff (see HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2d Dept 2009]).
Additionally, in evaluating "proof of the facts constituting the claim," plaintiff submits the revolving credit agreement, the party affidavit, and a statement. These documents leave many unanswered questions such as: how much credit was extended and the amount of the claimed default (see generally Hudson Val. Bank, N.A. v Banxcorp, 28 Misc 3d 1232[A], 2010 NY Slip Op 51572[U], *6 [Sup Ct, Westchester County 2010]). Specifically, the agreement for the revolving credit states that advances may be made from time to time, not to exceed $250,000.00, but the complaint and affidavit of merit appear to state that the entire possible amount of credit is due and payable, versus the amount of the actual advances made, of which there is no proof. There is also no evidence as to when and how payments were ever demanded pursuant to the agreement (see NYSCEF Doc. No. 2, ¶ 10 [a] [noting a default occurs if defendant "fail[s] to pay any amounts due under this Note . . . . when payment is demanded"]). There is no proof of a demand, which may be a prerequisite to enforcing its rights under the note (see e.g., Norwest Bank Minn. v Sabloff, 297 AD2d 722 [2d Dept 2002]).
Paragraph 8 of the complaint alleges a separate breach of the agreement, namely that defendant ceased to be employed by his employer at the time he executed the note (NYSCEF Doc. No. 1, ¶ 8). However, the motion does not address this breach and no evidence was submitted concerning the same.
It is also unclear when the default occurred. The agreement states that payment of all outstanding unpaid advances shall be made on October 31, 2016 (id. at ¶ 1); yet the plaintiff's complaint alleges that the creditor elected to accelerate amounts due on the loan prior to that time, on August 29, 2016 (NYSCEF Doc. No. 1, ¶ 8). Further, the affidavit of merit states that defendant failed to make any payments (NYSCEF Doc. No. 24, ¶ 4) and simultaneously states that the last payment was in the amount of $741.12 on October 31, 2016 (id. at ¶ 2). Thus, the amount due (whether $263,113.92 as plaintiff demands or some lesser amount) has not been established either.
For the foregoing reasons, plaintiff's motion is denied (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]; McGee v Dunn, 75 AD3d 624, 624-25 [2d Dept 2010]; see also Joosten v Gale, 129 AD2d 531, 535 [1st Dept 1987] ["CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action"]).
The Court notes that, even though plaintiff may have presumptively demonstrated that the Court acquired jurisdiction over the defendant by submitting an affidavit of service (see Skyline Agency, Inc. v Ambrose Coppotelli, Inc., 117 AD2d 135, 139 [2d Dept 1986] ["Ordinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a defendant is sufficient to support a finding of jurisdiction."]), the papers contain multiple addresses for defendant. Notably, the agreement itself states that process should be served at the defendant's address provided in the agreement, which is in Gidson Island, Maryland (NYSCEF Doc. No. 2, ¶ 20), but service of process was made at an address on West 56th Street in New York, New York (NYSCEF Doc. No. 3). The statement submitted with the affidavit of merit provides an address on West 64th Street (see NYSCEF Doc. No. 24) and a Department of Motor Vehicles (DMV) abstract lists an address at "455 Central W" in New York, New York as well (NYSCEF Doc. No. 22). Thus, there may be issues with plaintiff's proof of compliance with CPLR § 3215(g)(3), which requires an additional notice be sent to defendant at "his place of residence," or, if unknown, then his place of employment; or "if neither the place of residence nor the place of employment of the defendant is known, then the mailing shall be to the defendant at his last known residence" (CPLR § 3215 [g] [3] [i]). Here, plaintiff gave notice to the address on West 52nd Street. Plaintiff's counsel also claims it sent notice to the address from the DMV abstract but its proof is insufficient as the label with the address is covered and cannot be seen (see NYSCEF Doc. No. 23). Overall, it is unclear which address is the proper "last known address" to satisfy the requisite notice provisions to this defaulting defendant.
Accordingly, the motion is denied without prejudice. This constitutes the decision and order of the Court. 3/26/2019
DATE
/s/ _________
ALEXANDER M. TISCH, J.S.C.