Opinion
Index No. CV-011790-20/BX
07-27-2022
Discover Bank, Plaintiff, v. Nelson Rolon, Defendant.
Unpublished Opinion
VERENA C. POWELL, J.
Recitation of the papers considered in reviewing the underlying motion as required by C.P.L.R. § 2219(a):
Papers Numbered
Notice of Motion, Attorney's Affirmation in Support, and annexed exhibits 1
The plaintiff's motion for judgment is Denied upon the foregoing cited papers.
Plaintiff moves for an order seeking entry of a default judgment for Defendant's failure to answer or otherwise appear in this action and leave for the Court to excuse its failure in not seeking a default judgment within one year of Defendant's default. Plaintiff appeared at the calendar call; Defendant did not appear. Upon Plaintiff's application, the Court marked the motion submitted without opposition.
Standard of Review
Plaintiff began this action by filing a summons and complaint on October 9, 2020. Plaintiff filed this motion on April 6, 2022. In support of its motion, Plaintiff submits the affirmation of Steven L. Rosenthal, Esq., ("Rosenthal") counsel for Kirschenbaum & Phillips, P.C. Rosenthal states, in an April 5, 2022, affirmation that "The Plaintiff would have submitted the judgment within the one-year period, however [u]nfortunately, the affidavit and all documentation were not received within one year of the service of the Summons & Complaint to submit the Judgment to the clerk."
"To establish entitlement to a default judgment, a plaintiff must submit proof of the facts constituting the claim, and proof of the defendants' defaults, satisfy the notice requirements for the motion and timely move for relief ." American Tr. Inc. Co. v. Avelar, 2020 NY Slip Op 33622(U) (Sup. Ct., NY Co. 2020) (Internal citations omitted).
According to the affidavit of service annexed to Plaintiff's motion, the process server delivered the summons and complaint to a person of suitable age and discretion on October 22, 2020, and the process server mailed a second copy of the papers to Defendant's last known residence, usual place of abode on October 28, 2020. The court clerk's stamp on the affidavit of service bears a filing date of October 29, 2020. A court record review indicates that Defendant did not file an answer.
As this is a consumer credit transaction, this matter is subject to enhanced pleading requirements imposed by 22 N.Y.C.R.R. § 208.6(d)(1). The court clerk is required to send Defendant a notice that a summons and complaint have been filed in a consumer credit matter, which Plaintiff rightfully provided to the court clerk to mail to Defendant. However, the United States Postal Service returned the mailing marked undeliverable as the time to forward had expired and notified the Court of Defendant's new address in Honolulu, Hawaii. See generally U.S. Postal Serv. Domestic Mail Manual 507.2.0 (mail forwarding procedures and limitations). Consequently, the copy of the summons and complaint mailed by the process server on October 28, 2020, to Defendant's Bronx, New York residence may presumably have been returned as undeliverable as well, as the time to forward had expired.
Plaintiff's Notice of Motion to Enter Judgment mailed to defendant's Bronx address on April 6, 2022, presumably was or will be similarly returned to sender as well. That Plaintiff appears unaware of Defendant's relocation to Hawaii, despite presumably receiving similar notice from the Postal Service that the Court received, is concerning and also leads to questions of whether service of the complaint itself was effective. That the notice of the summons and complaint returned to the Court was returned because Defendant's mail forwarding had expired indicates that Defendant moved away from the place of service over a year prior to the alleged service in this action. U.S. Postal Serv. Domestic Mail Manual 507.1.5.1 (markings affixed to returned first-class mail).
Even presuming (without deciding) that proper service has been accomplished in this action, CPLR 3215(c) provides that "if the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." In Wells Fargo Bank, N.A. v. Martinez, 181 A.D.3d 470 (1st Dept. 2020), the court noted that "[t]he language of CPLR 3215(c) is not discretionary, and a claim for which a default judgment is not sought within the requisite one-year period will be deemed abandoned." The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court. See Perricone v. City of New York, 62 N.Y.2d 661 (1984). That said, "excusing a party from compliance with the one-year deadline for seeking a default judgment is the exception rather than the rule," though, and an "excuse must be so presented with detailed articulable facts that are not amorphous, vague or subject to arbitrary interpretations," as "an excuse which is amorphous or otherwise specious constitutes no excuse at all." Hertz Corp. v. Hall, 2022 NY Slip Op 50516(U), *1 (Civ. Ct., Bronx Co. May 23, 2022) (quotations and citations omitted). Although the Court takes judicial notice of the hardships the ongoing pandemic has imposed upon the bench and bar, Plaintiff does not cite the ongoing pandemic as cause for any of its delay in this action, and emergency orders tolling filing deadlines expired soon after this action was commenced in any event. Governor's Executive Order No. 202.72, 9 N.Y.C.R.R. § 8.202.72. Thus, Plaintiff must comply with CPLR 3215 as in the ordinary course.
In reviewing Plaintiff's alleged cause for its delay, the Court finds that Plaintiff has not established good cause for its delay and instead finds that Plaintiff's claims have been abandoned pursuant to CPLR 3215(c). The facts of this action as alleged are not complex, and the information submitted in support of the instant motion is principally comprised of basic financial and business records that presumably should have been available to counsel in drafting the complaint at the outset. Moreover, the affidavits of Ruby Cordova ("Cordova") upon which Plaintiff relies for factual information (and themselves premised upon Cordova's review of the business records offered as evidence) were each sworn on January 12, 2022. There is no explanation in the record before the Court why Plaintiff needed 83 additional days after Cordova executed their affidavits (themselves based upon having marshalled and reviewed the very records Plaintiff annexed as exhibits) to complete its papers in the instant motion. See Hertz Corp., at *2 (noting dates of supporting affidavits and that "[t]here is no indication in plaintiff's papers why plaintiff needed so much additional time when all of the necessary statements and factual evidence appear to have been marshalled many months prior," in denying default judgment and dismissing action). Absent a reasonable explanation for that 83-day delay, Plaintiff has not established good cause to excuse its late effort to seek a default judgment.
Pursuant to CPLR 3215(c), the Court dismisses the action as abandoned.
Conclusion
Accordingly, Plaintiff's motion is denied. The Clerk of the Court is directed to dismiss the complaint.
ORDERED that Plaintiff serve a copy of this Decision and Order with Notice of Entry upon Defendants within ten (10) days of the date of this order.
This constitutes the decision and order of the Court.