Opinion
CV-001456-17/RI
03-09-2021
TD AUTO FINANCE LLC, Plaintiff, v. Senada NIKOVIC, Defendant.
Rubin & Rothman, LLC for Plaintiff
Rubin & Rothman, LLC for Plaintiff
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:
Papers Numbered
Notice of Motion and Affirmation/Affidavit annexed 1-2
Upon the foregoing cited papers, the decision on Plaintiff's Motion for Default Judgment is as follows:
Plaintiff, TD Auto Finance LLC (hereinafter, "Plaintiff"), commenced this action against the defendant, Senada Nikovic (hereinafter, "Defendant"), for an alleged breach of a retail installment contract, seeking damages in the amount of $7,900.29.
The long and tortured procedural history of this matter is worth noting at the onset. Plaintiff filed the summons and complaint in this action on April 17, 2017. Service was made on the Defendant on April 28, 2017, and an affidavit of service was filed with the Court on May 15, 2017. The matter lay dormant for over two years, until September 9, 2019, when Plaintiff attempted to obtain a default judgment through the Clerk's Office. Plaintiff's judgment was rejected by the Clerk's Office as the matter was deemed abandoned. Now comes the Plaintiff, after more than eighteen months of further inactivity, seeking an entry of default judgment pursuant to CPLR 3215(b). Defendant has not appeared in this action or submitted opposition to the instant motion.
Discussion
CPLR 3215(c) provides, in part, that "[i]f 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." It is well settled that the language of CPLR 3215 (c) is mandatory, "inasmuch as courts ‘shall’ dismiss claims ( CPLR 3215 [c] ) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned" ( Giglio v NTIMP, Inc. , 86 AD3d 301, 307-308 [2d Dept 2011] ; see HSBC Bank USA, N.A. v Jean , 165 AD3d 632, 633 [2d Dept 2018] ). Plaintiff's failure to move for an entry of judgment within a year of default may be excused, however, upon a showing of "sufficient cause" ( Aurora Loan Servs., LLC v Hiyo , 130 AD3d 763, 764 [2d Dept 2015] ). To establish "sufficient cause", the party opposing dismissal must demonstrate that it had "a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action" ( id. at 764 ).
Over three-and-a-half years have come and gone since Plaintiff initiated this action to the filing of the instant motion. The one-year period for Plaintiff to move for the entry of a default judgment lapsed in May 2018. Plaintiff's attorney's affirmation states the delay in moving for a default judgment was due to "law office failure caused by a clerical error." Specifically, Plaintiff's attorney claims it requested an affidavit of facts from Plaintiff. Upon receipt of Plaintiff's affidavit, counsel noticed a "clerical or typographical error" and sent the affidavit back to Plaintiff for correction. Following receipt of the updated affidavit, counsel states it applied for default judgment "at first opportunity" ostensibly in September 2019, when Plaintiff's application was denied by the Clerk's Office as the matter was "[d]eemed abandoned".
This Court finds plaintiff's attorney's affirmation problematic in that it is not based on personal knowledge ( Warrington v. Ryder Truck Rental, Inc. , 35 AD3d 455, 456 [2d Dept 2006] ("An attorney's affirmation that is not based upon personal knowledge is of no probative or evidentiary significance.").
While a court has the discretion to accept law office failure as a reasonable excuse, such a claim should be supported by a "detailed and credible" explanation of the default ( Henry v. Kuveke , 9 AD3d 476, 479 [2d Dept 2004] ). Plaintiff's moving papers are void of any detailed explanation of law office failure, stating only that a "clerical or typographical error" delayed in receiving an affidavit of facts from the Plaintiff. While Plaintiff's affidavit of merit was sworn to on February 12, 2019, Plaintiff's counsel fails to give any specific dates as to when the affidavit was first mailed to Plaintiff and when Plaintiff mailed back the corrected copy. Indeed, Plaintiff's application was already untimely by the time the affidavit was signed. Further, Plaintiff makes no mention as to why it failed to bring the instant motion in September 2019 after the Clerk rejected its application or why it waited more than a year to bring the instant motion. Plaintiff's excuse must fail as it is vague, wholly conclusory, and unsubstantiated ( Mattera v. Capric , 54 AD3d 827, 828 [2d Dept 2008] ; Staples v. Jeff Hunt Developers , 56 AD3d 459, 460 [2d Dept 2008] ; Lugauer v. Forest City Ratner Co., 44 AD3d 829, 830 [2d Dept 2007] ).
Since Plaintiff has failed to offer a reasonable excuse for its delay, this Court need not consider whether the Plaintiff has a potentially meritorious cause of action ( Deutsche Bank National Trust Company v. Booker , 173 AD3d 683, 685 [2d Dept 2019] ).
Accordingly, Plaintiff's motion is denied, and the case is dismissed as abandoned pursuant to CPLR 3215(c).
The foregoing constitutes the Decision and Order of the Court.