Opinion
Index No. CV-004476-19/RI
03-10-2022
American Express National Bank, Plaintiff, v. Hend Aziz aka HEND ABU AZIZ and DNM WHOLESALE, INC., Defendants.
Plaintiff's Counsel Zwicker & Associates, P.C. Defendant- No appearance
Unpublished Opinion
Plaintiff's Counsel Zwicker & Associates, P.C.
Defendant- No appearance
BRENDAN T. LANTRY, J.
Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this motion:
Papers/Numbered
Plaintiff's Notice of Motion for Default Judgment, Affirmation in Support of Plaintiff's Motion for Default Judgment, with annexed exhibits, Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Default Judgment (dated January 19, 2022), Affidavit of Facts by Original Creditor, with annexed exhibits (dated September 29, 2021) 1
Plaintiff American Express National Bank (hereinafter, "Plaintiff"), commenced the underlying action against the Defendants, Hend Aziz aka Hend Abu Aziz and DNM Wholesale, Inc. (hereinafter, "Defendants"), by filing a Summons and Complaint on August 9, 2019. In the Complaint, Plaintiff seeks $22,615.32, the costs and disbursements of this action, and such other and further relief as the Court deems just and proper. On January 25, 2022, Plaintiff filed the within motion seeking a default judgment against Defendants pursuant to CPLR § 3215(a) for Defendants' failure to file a timely answer. Defendants have also failed to file any opposition to this motion. Due to Defendants' failure to appear at the return date of this motion on February 23, 2022, the matter was marked fully submitted and the Court reserved decision on the motion. Upon consideration of the papers submitted and the procedural history of this matter, the Court hereby denies Plaintiff's motion in its entirety.
Procedural History
Plaintiff served the Summons and Complaint upon Defendant DNM Wholesale, Inc. ("DNM Wholesale") by service upon the Secretary of State of the State of New York on August 20, 2019. On September 6, 2019, Plaintiff filed with the Court the Affidavit of Service for service upon Defendant DNM Wholesale. Plaintiff served Defendant Hend Aziz aka Hend Abu Aziz ("Aziz") with the Summons and Complaint by service upon a person of suitable age and discretion on August 31, 2019 and by mail on September 6, 2019. Plaintiff filed the Affidavit of Service for service upon Defendant Ferrara with the Court on September 10, 2019. After Defendants failed to answer or otherwise appear in this action, Plaintiff filed the present motion for default judgment on January 25, 2019.
Discussion
A party seeking to move for default judgment pursuant to CPLR § 3215(c) must make such application within one year of the defendant's default. According to the statute,
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. A motion by the defendant under this subdivision does not constitute an appearance in the action. CPLR § 3215(c)
In light of the COVID-19 pandemic, former Governor Andrew M. Cuomo issued Executive Order 202.8 on March 20, 2020, which held that
In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing or service of any legal action, notice, motion or other process or proceeding, as prescribed by the procedural laws of the state, including, but not limited to, the... civil practice law and rules..., or by any other statute, local law, ordinance, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.
Subsequent to the issuance of this executive order, former Governor Cuomo issued a series of executive orders to extend the tolling period through November 3, 2020. (See Brash v. Richards, 195 A.D.3d 582 [2d Dept 2021]; Executive Order Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, and 202.72. See also Echevarria v. Board of Elections in the City of New York, 183 A.D.3d 857 [2d Dept 2020]). The latest executive order issued by former Governor Cuomo on November 3, 2020 held that the "toll" was no longer in effect as of November 4, 2020. Executive Order No. 202.79 (See 9 NYCRR 8.202.72).
Here, the record shows that Defendant DNM Wholesale was in default as of September 20, 2019. The record also shows that Defendant Aziz was in default on October 22, 2019. Therefore, pursuant to CPLR § 3215(c) and the tolling provisions contained in Executive Order 202.8 et seq., the Court finds that Plaintiff was required to move for a default judgment against Defendant DNM Wholesale by May 5, 2021. Plaintiff also was required to move for a default judgment under these provisions against Defendant Aziz by June 7, 2021. Since Plaintiff failed to move for default judgment against both Defendants until January 25, 2022, the Court finds that Plaintiff's motion is untimely.
The Court notes that while Plaintiff concedes that the instant application for default is untimely, Plaintiff requests that the Court excuse and disregard such untimeliness on the grounds that the lateness is" diminimus." (sic). Citing Sanders v. Aziz, 101 A.D.2d 734 [1st Dept., 1984], Plaintiff argues that it has a meritorious claim and that the Defendants will not be prejudiced by its "short delay" in moving for a default judgment. However, in Sanders, the First Department excused a three-day delay in filing a motion for default as the delay was "relatively short" and the Court determined that a meritorious claim existed and there was no legal prejudice in allowing the application.
Even when a motion for default judgment is unopposed, such a motion made more than one year after the defendant's default will be denied unless the plaintiff proffers a "reasonable excuse for its delay" and a showing that the complaint was "potentially meritorious." See DLJ Mortg. Capital, Inc. v. United General Title Ins. Co., 128 A.D.3d 760 [2d Dept 2015]. "The determination of whether an excuse is reasonably in any given instance is committed to the sound discretion of the motion court." Deutsche Bank National Trust Company v. Braithwaite, 197 A.D.3d 55 [2d Dept 2021] (quoting Giglio v. NTIMP, Inc., 86 A.D.3d 301 [2d Dept 2018]).
In the instant matter, the Plaintiff's delay in filing its motion for default judgment as to each of the Defendants is not de minimis, as alleged by Plaintiff in its Memorandum of Law, nor are the delays "relatively short" as was the case in the three-day delay in Sanders, 101 A.D.2d at 734. Plaintiff's motion as to Defendant DNM Wholesale was filed two hundred sixty-five (265) days after May 5, 2021, the date by which CPLR § 3215(c) requires a default to be taken against defendant DNM Wholesale, which includes the toll period granted under Executive Order 202.8 et seq. Plaintiff's motion as to Defendant Aziz was filed two hundred thirty-two (232) days after June 7, 2021, the date by which CPLR § 3215(c) requires a default to be taken against defendant Aziz, including the toll period granted under Executive Order 202.8 et seq.
Furthermore, Plaintiff has failed to provide a reasonably excuse for its delay in filing the instant, untimely motion, nor has Plaintiff shown sufficient cause as to why the Complaint should not be dismissed pursuant to CPLR § 3215(c).
The Court further finds Plaintiff's attempts to characterize its delay in filing for default judgment to be unavailing and an unacceptable misuse of the tolling provisions under Executive Order 202.8 et seq. The Court notes that the tolling provisions provided under Executive Order 202.8 et seq. were enacted "in accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis." See Executive Order 202.8. As the Court reviews this matter in March 2022, the public health emergency has significantly abated and any purported need for tolling provisions has waned, as evidenced by the expiration and recission of many pandemic-era executive orders.
Therefore, Plaintiff cannot use the tolling provisions under Executive Order 202.8 et seq. as a license to bring an untimely application without providing a reasonable excuse for the delay. As this Court recently held in the analogous case of American Express National Bank v. Anthony Ferrera, et al., (Index No. CV-6107-19/RI), "to allow any party to use the tolling provisions of Executive Order 202.8 et seq. to bring such an untimely application without a reasonable excuse for such delay would abuse a tolling process that was clearly intended to be temporary in nature."
Therefore, Plaintiff's motion for default judgment is hereby denied, and the Complaint is dismissed as abandoned.
The foregoing constitutes the Decision and Order of the Court.