Opinion
CV-018809-17/KI
03-06-2019
CAPITAL ONE BANK (USA), N.A., Plaintiff, v. Morris EASTMAN, Defendant.
For Plaintiff: Dana Arrick, Esq., Malen & Associates, p.c., 123 Frost Street, Suite 203, Westbury, New York 11590, (516)-479-5953 Defendant: Morris Eastman, [redacted], Brooklyn, NY 11212-2636
For Plaintiff: Dana Arrick, Esq., Malen & Associates, p.c., 123 Frost Street, Suite 203, Westbury, New York 11590, (516)-479-5953
Defendant: Morris Eastman, [redacted], Brooklyn, NY 11212-2636
Sandra E. Roper, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2
AFFIRMATION IN SUPPORT 3
AFFIDAVIT OF FACTS & CHARGE OFF STATEMENTS 4
SUMMONS, COMPLAINT & AFFIDAVIT OF SERVICE 5
NON-MILITARY AFFIDAVIT 6
INTRODUCTION
Plaintiff moves This Honorable Court by Notice of Motion, unopposed, pursuant to CPLR 3215 to Order Clerk of the Court to enter Judgment in favor of Plaintiff as against Defendant for the relief sought in the Complaint together with such other and further relief deemed just and proper. For the reasons set forth below, Plaintiff's Complaint is Dismissed, and motion is DENIED.
PROCEDURAL AND FACTUAL HISTORY
Plaintiff, as an original creditor, and defendant entered into a revolving credit card agreement. Defendant agreed to pay plaintiff for all goods, services, and cash advances pursuant to the agreement. Plaintiff claims, if any made, defendant's last payment was $ 100.00 made on March 14, 2016. Plaintiff has made demand for payment; however, defendant remains in default of the agreement in the charge-off balance amount of $ 2,627.23. On August 22, 2017 an action was commenced as a consumer credit transaction case to recover said sums due and owing by Summons and Complaint for the following claims:
4. CAUSE OF ACTION NUMBER ONE:
Defendant(s) executed an agreement wherein Plaintiff agreed to extend credit or cash advance on a revolving basis which credit or advance was to be paid in monthly installments. There remains due and owning the sum of $ 2,627.23.
5. That no portion of the aforementioned sum has been paid, although duly demanded.
6. CAUSE OF ACTION NUMBER TWO:
Plaintiff repeats each allegation contained in paragraphs 1 through 5, inclusive.
7. An account was taken and stated showing a balance of $ 2,627.23 due and owing to Plaintiff by Defendant(s), no part of which has been paid, although duly demanded, which Defendant(s) did not object to.
Plaintiff expressly disclaims any right to attorney fees.
Affidavit of Service states effectuated pursuant to CPLR 308 (2) by delivering to a person of "suitable age and discretion" to wit, a M. Eastman, at defendant's "dwelling place or usual place of abode" on September 21, 2017 at 9:55 AM, with service being completed by subsequent mailing of copy of the summons and complaint to defendant's "last known residence in an envelope marked ‘Personal & Confidential’ " not disclosing the sender's identity" on September 23, 2017. Proof of service was filed with Kings County Clerk of the Court on September 27, 2017.
Service is therefore deemed complete ten days after filing of proof of service, which would have been October 7, 2017. Pursuant to CPLR 320 defendant's Answer was due 30 days after filing of the proof of service with the clerk, which would have been the expiration date of November 6, 2017. Plaintiff claims upon information and belief, defendant had failed to appear nor interpose an Answer in this action. Pursuant to CPLR 3215 (c), plaintiff had a year in which to petition the court for entry of default judgment pursuant to CPLR 3215 (b) and (e), which would have been the expiration date of November 6, 2018. Plaintiff's affidavit of service upon defendant for within motion was effectuated January 18, 2019 and affidavit of non-military status dated likewise. Motion filed in court on February 5, 2019, more than 1 year after the default date of November 6, 2017 in violation of CPLR 3215 (c). Court appointed return date of February 22, 2019 for argument. Pursuant to CPLR 2214 (b) defendant's opposition, answering supportive affidavits were due 7 days before February 22, 2019, to wit, February 14, 2019. There have been no opposition papers nor court appearances by defendant in opposition. Therefore, the instant motion for entry of default judgment is unopposed.
DISCUSSION
Although plaintiff properly relies procedurally on CPLR 3215 (b) and CPLR 3215 (e) to move for entry of default judgment, the one-year time limit in which to do so has expired. Therefore, at issue herein is whether the plaintiff viably makes out an exception pursuant to CPLR 3215 (c) for entry of judgment after the expiration of one year after the default. CPLR 3215 (c) provides:
(c) Default not entered within one year. 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.
That carved out exception is "unless sufficient cause is shown why the complaint should not be dismissed." (Id. )
"The language of CPLR 3215 (c) is not, in the first instance, discretionary, but mandatory inasmuch as courts shall dismiss claims 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 [2011] ; see HSBC Bank USA, N.A. v. Grella, 145 AD3d 669, 671 [2016] ). The statute's underlying policy through legislative history is to avoid stagnation of cases and "to prevent plaintiffs from unreasonably delaying the termination of an action." ( Reyes v. Dunbar , 124 Misc 2d 958, 959 [1984], quoting Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3215 [last available in 1992]; see also Thirteenth Annual Report of NY Judicial Council, 1947 at 215.) So much so of legislative concern as to clogging up the judicial dockets, that this statute explicitly states that the court may sua sponte dismiss the complaint as abandoned in any such stale cases beyond the one-year period. " ( HSBC Bank USA, N.A. v. Grella, 145 AD3d at 671, quoting CPLR 3215 [c] ).
It is within the sole discretion of the court to grant the CPLR 3215(c) carved out "sufficient cause" exception for extension of time beyond the one-year time limit after default in which to file for entry of judgment. ( Ewart v. Maimonidies Med. Ctr. , 239 AD2d 543, 544 [2d Dept 1997] ; Herzbrun v. Levine , 23 AD2d 744, [1st Dept 1965] ; HSBC Bank USA, N.A. v. Grella, 145 AD3d at 671 ). It has been held that the party invoking the exception must demonstrate, "a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action" ( Aurora Loan Servs., LLC v. Hiyo , 130 AD3d 763, 764 [2d Dept 2015] ; see Wells Fargo Bank, N.A. v. Bonanno , 146 AD3d 844, 845-846 [2d Dept 2017] ; see also Maspeth Fed. Sav. & Loan Assn. v. Brooklyn Heritage, LLC , 138 AD3d 793 [2016] ; Aurora Loan Services, LLC v. Hiyo, 130 AD3d 763, 764 [2015] ; Pipinias v. J.Sackaris & Sons, Inc. , 116 AD3d 749, 751 [2014] ; Rosado v. Economy El. Co. , 236 AD2d 598 [1997] ; Valure v. Century 21 Grand , 35 AD3d 591, 592 [2006] ). It is within the exclusive province and sound discretion of the trial or motion court whether an excuse presented for the delay is reasonable and passes muster as to "sufficient cause" exception ( Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d at 752, quoting Giglio v. NTIMP, Inc. , 86 AD3d at 308 ; see U.S. Bank, N.A. v. Dorvelus , 140 AD3d 850, 852 [2d Dept 2016] ). Length of time of delay is but one factor to be considered in that determination ( Dominguez v. Carioscia, 1 AD3d 396, [2nd Dept. 2003], Pipinias v. Sackaris & Sons Inc . 116 AD3d 749 [2nd Dept. 2014], Lv To App Denied 24 NY3d 990 ). An almost two -year delay in petitioning for entry of judgment in default with no substantive facts in explanation as to reasonable excuse, Appellate Division Second Department dismissed complaint and denied entry of judgment ( Wells Fargo Bank, NA v. Bonanno 146 AD3d 844 [2nd Dept 2017]. Likewise, Appellate Division Second Department dismissed complaint and denied entry of judgment where motion for entry of judgment on default was delayed one year and eight days and failed to advance any colorable excuse ( Giglio v. NTIMP, Inc., 86 AD3d 301 [2nd Dept 2011] ). An excuse which is amorphous or otherwise specious constitutes no excuse at all (see Dugan v. Belik, 170 AD2d 746 [3rd Dept 1991] ). Where plaintiff fails to articulate any factual or legal viable reasoning for the delay in time, then plaintiff shall similarly fail to satisfy the ‘sufficient cause’ exception as it is intended by CPLR 3215 (c), thereby warranting dismissal of complaint and denial of entry of judgment ( U.S. Bank N.A. v. Berger , 59 Misc 3d 1224[A], 2018 NY Slip Op 50686[U] [Sup Ct, Suffolk County 2018] ).
Law office failure may be viable grounds for reasonable excuse ( Matter of Esposito , 57 AD3d 894 [2d Dept 2008] ). However, the bar is high. Even though the court has discretion pursuant to CPLR 2005, "as a matter of law in the interests of justice to excuse delay or default resulting from law office failure," said excuse must be so presented with detailed articulable facts that are not amorphous, vague or subject to arbitrary interpretations ( CPLR 2005 ; CEO Bus. Brokers, Inc. v. Alqabili , 105 AD3d 989, 990 [2d Dept 2013] ; HSBC Bank USA, N.A. v. Wider , 101 AD3d 683 [2d Dept 2012] ). The Appellate Division, Second Division held:
"The Supreme Court providently exercised its discretion in rejecting the plaintiff's excuse of law office failure and properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c). The plaintiff's excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v. Dorvelus , 140 AD3d at 852 ; Baruch v. Nassau County , 134 AD3d 658, 659 ; Mattera v. Capric , 54 AD3d 827, 828 ). The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff's file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate's affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred. The one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no indication that the attorney had left prior thereto."
( Ibrahim v. Nablus Sweets Corp. , 161 AD3d 961, 964 [2d Dept 2018] ).
"Here, the plaintiff's assertions that it did not take any proceedings for entry of judgment within one year after the defendants' default due to law office failure occasioned by the dissolution of the law firm originally representing it, combined with delays caused by Hurricane Sandy in 2012, were conclusory and unsubstantiated, and did not rise to the level of a reasonable excuse (see Bank of NY Mellon v. Colucci , 138 AD3d 1047, 1047-1048, [2016] ; Buchakian v. Kuriga , 138 AD3d 711, 712-713, [2016] ; Baruch v. Nassau County , 134 AD3d at 659 ; Ryant v. Bullock , 77 AD3d 811, 812 [2010] )."
( U.S. Bank, N.A. v. Dorvelus , 140 AD3d 850, 852 [2d Dept 2016] ).
"Here, the affirmation of an attorney from the law firm representing the appellants explained that the firm was downsizing significantly, two attorneys who had been handling the case were no longer with the firm, and the newly-assigned attorney's secretary, upon whom the attorney relied for calendaring matters, had recently left the firm. This was a sufficiently detailed explanation for the law firm's failure to appear (see Franco Belli Plumbing & Heating & Sons, Inc. v. Imperial Dev. & Constr. Corp ., 45 AD3d 634, 636 [2007] ; Friedman v. Crystal Ball Group, Inc., 28 AD3d 514, 515 [2006] ; Weekes v. Karayianakis , 304 AD2d 561, 562 [2003] ; Morris v. Metropolitan Transp. Auth ., 191 AD2d 682 [1993] )."
( Matter of Esposito , 57 AD3d 894, 895 [2d Dept 2008] ). "In this case, the excuse proffered by the defendants was limited to the self-serving and unsubstantiated allegations" ( Morris v. Metropolitan Transp. Auth ., 595 NYS 2d 539, 540 [2d Dept 1993] ).
"Here, defense counsel's allegation of law office failure was vague, conclusory, unsubstantiated (see HSBC Bank USA N.A. v. Wider , 101 AD3d 683 [2012] ; Cantor v. Flores , 94 AD3d 936, 937 [2012] ; Wells Fargo Bank, N.A. v. Cervini , 84 AD3d 789, 789-790 [2011] ), and unreasonable under the circumstances (cf. Stolpiec v. Wiener , 100 AD2d 931, 932 [1984] )."
( CEO Bus. Brokers, Inc. v. Alqabili, 105 AD3d 989, 990 [2d Dept 2013] ).
In the instant matter herein, plaintiff as movant fails to provide detailed articulable facts and allegations as to its law office failure to viably establish reasonable excuse for the delay in filing entry of judgment after default. It strains credulity and is indeed an affront to this Honorable Court that plaintiff's law office failure upon which it relies for its reasonable excuse to satisfy the high bar for the "sufficient cause" exception in this strict mandatorily applied statute of CPLR 3215 (c) is encapsulated merely as, "Plaintiff's counsel inadvertently allowed the one-year period to elapse ." "Inadvertently", accidentally, unwittingly, mistakenly or casually, is merely an "oops" defense where not accompanied by articulable substantiated corroborating facts. Indeed, the court cannot entertain or give viability to a pro-se party arguing such a defense wholly devoid of any substance, nor likewise even more so to that of a represented party as plaintiff herein in this instant matter. Here, as pled by plaintiff with lack of specificity, including dates, times, place of occurrence and substantiating facts for law office failure. No qualifications, no specifics, no articulable facts, no colorable legal arguments whatsoever. Plaintiff failed to even attempt to set forth any caselaw with legal analysis for its position. The lack thereof of facts and of legal argument is a sanctionable frivolous filing of this instant motion. Plaintiff presents no relevant prevailing precedential law utilizing the most basic reasoning skills of a law school student to provide a brief of its legal position for the court to consider as to the remedy that's sought by movant. Where the law is not in a movant's favor, at the very least present the current state of the law to the court and then movant may argue to differentiate the facts from the prevailing holdings against movant's position. Court finds that failure to so do and merely make a vague, conclusory, unsubstantiated, arbitrarily suggestive statement is a frivolous filing unnecessarily clogging up the very strained judicial resources, which negatively impacts the efficiency of rendering justice to our citizens. Such frivolous filings are particularly diametrically opposed to the intent of Excellence Initiative by Honorable Chief Judge.
AFFIRMATION IN SUPPORT OF MOTION TO ENTER DEFAULT JUDGMENT, CLAUSE 8
NY Courts Rules of the Chief Administrative Judge, Part 130-1, Awards of Costs And Imposition of Financial Sanctions For Frivolous Conduct In Civil Litigation. Plaintiff herein is specifically violative of 22 NYCRR 130-1.1(c)(1), "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law"; which is enforced pursuant to 22 NYCRR 130-1.1(d), "An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case." NY Court of Appeals in Dutch Church v. 198 Broadway, Inc. 76 NY2d 411 (1990) held, "The present motion is frivolous so lacking in factual or legal merit in fixing the sanction at $ 2,500.00 we have taken into account the need to deter further frivolous motion practice." Id at 415. (see Levin v. Axelrod , 168 AD2d 178 [1991]. In this instant matter herein, notwithstanding that this court finds that plaintiff's motion is indeed frivolous being so very lacking in factual or legal merit, and, plaintiff should have known that the motion as presented to the court was frivolous, this court however declines to impose sanctions pursuant to 22NYCRR 130-1.1(d). Rather, This Honorable Court strongly cautions plaintiff from such conduct in the future.
" to promote the rule of law and serve the public by achieving just and timely resolution of all matters before the courts. " (Excellence Initiative, https://www.nycourts.gov/excellence-initiative/)
For the foregoing reasons, this Court finds the Unopposed Motion for entry of judgment untimely pursuant to CPLR 3215 (c) and Orders Dismissal of Complaint as abandoned, and Motion for Entry of Judgment is DENIED.
The foregoing constitutes the opinion, decision, and order of This Honorable Court.