Opinion
Index No. 158103/2020 Motion Seq. No. 001
07-20-2022
NATIONAL GENERAL INSURANCE CO. A/S/O STEPHEN LEFFLER Plaintiff, v. LEX INTERIORS LTD, Defendant.
Unpublished Opinion
MOTION DATE 02/07/2022.
PRESENT: HON. WILLIAM PERRY, Justice.
DECISION + ORDER ON MOTION
WILLIAM PERRY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10 were read on this motion to/for JUDGMENT - DEFAULT.
In this subrogation action, plaintiff National General Insurance Co. a/s/o Stephen Leffler moves, pursuant to CPLR 3215, for a default judgment against defendant Lex Interiors Ltd. The motion is supported by copies of the summons and complaint, affidavits of service and an affidavit from plaintiff. Although defendant has interposed an untimely answer dated February 14,2022 (NYSCEF Doc No. 11), defendant has not submitted any opposition to the motion or submitted a cross motion to extend its time to answer and compel plaintiff to accept its late answer.
As a preliminary matter, CPLR 3215 (c) provides that proceedings for entry of a default judgment must be taken within one year after the default otherwise the "the court... 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." According to the affidavit of service sworn to on November 10, 2020, plaintiff served defendant with process on November 10, 2020 by delivering the summons, complaint and notice of electronic filing to the Secretary of State pursuant to Business Corporation Law § 306 (NYSCEF Doc No. Joshua I.
Aron [Aron] affirmation, Ex B at 1). Because service upon a corporation is complete when the Secretary of State is served (see Business Corporation Law § 306 [b] [1]), defendant was required to answer or appear within 30 days of November 10, 2020 (see CPLR 320 [a]). Defendant did not timely answer or otherwise appear or move to extend its time to do so (see CPLR 3012). Plaintiff, though, did not serve or file the instant motion until February 7, 2022, nearly fourteen months after defendant's default.
As noted above, the plaintiff must demonstrate sufficient cause why the complaint should not be dismissed as abandoned. "Sufficient cause requires 'a reasonable excuse for the delay in timely moving for a default judgment and to demonstrate that the cause of action is potentially meritorious'" (U.S. Bank N.A. v Nunez, 190 A.D.3d 660, 661 [1st Dept 2021] [citation omitted]). It is within the court's discretion to determine whether the excuse proffered by plaintiff is reasonable (see LaSalle Bank N.A. v Carlton, 204 A.D.3d 985, 987 [2d Dept 2022]).
Here, plaintiff attributes the delay to "complications brought on by the Covid-19 pandemic, including furloughed employee [sic] and working remotely. The general practices and procedures of filing suit were more challenging, including verifying service, obtaining the Affidavit of Fact from clients facing similar challenges and obtaining account statements supporting the claim" (NYSCEF Doc No. 4, Aron affirmation, ¶ 13). The court finds that this statement is wholly conclusory and lacks specific detail (see Discover Bank v Duncan, 2022 NY Misc. LEXIS 3057, *3 [Sup Ct, Suffolk County, May 18, 2022, St. George, J., index No. 623128/2019] [dismissing a complaint as abandoned where the plaintiffs claim of delay attributed to the COVID-19 pandemic was "restricted to [a] single, conclusory sentence in ... counsel's affirmation"]). Critically, the affidavit submitted in support of the motion is sworn to on October 15, 2021 (NYSCEF Doc No. 8, Aron affirmation, Ex D at 2). Plaintiff offers no explanation as to why it waited an additional four months to move for relief (see Hertz Corp. v Hall, 75 Misc.3d 1216[A], 2022 NY Slip Op 50516[U], *2 [Civ Ct, Bronx County 2022] [dismissing a complaint as abandoned where the plaintiff, who cited the COVID-19 pandemic as the reason for the delay, waited eight months after obtaining the affidavit of fact, to which all relevant documentary evidence was attached, before moving for a default judgment]; American Express Natl. Bank v Aziz, 2022 NY Slip Op 50533[U], *3 [Civ Ct, Richmond County 2022] [denying the plaintiffs motion for a default judgment and dismissing the complaint as abandoned because the COVID-19 health crisis had significantly abated by the time the plaintiff moved for a default judgment]). As such, the court finds that plaintiff has failed to demonstrate a reasonable excuse for the delay (see Seide v Colder on, 126 A.D.3d 417, 417 [1st Dept 2015]). Plaintiff is not entitled to entry of a default judgment against defendant, and the court dismisses the complaint as abandoned under CPLR 3215 (c).
The affidavit itself appears to be unsigned, and the handwritten portions of it are largely illegible.
Accordingly, it is hereby
ORDERED that the motion brought by plaintiff National General Insurance Co. a/s/o Stephen Leffler for leave to enter a default judgment against defendant Lex Interiors Ltd. (motion sequence no. 001) is denied; and it is further
ORDERED that, pursuant to CPLR 3215 (c), the complaint is dismissed as abandoned; and it is further
ORDERED that the Clerk shall enter judgment accordingly; and it is further
ORDERED that, within 20 days from the date of entry of this order, plaintiff shall serve a copy of this order with notice of entry on defendant and the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).