Opinion
Index No. TS-300504-21/RI
08-02-2022
The Brooklyn Union Gas Company D/B/A NATIONAL GRID NEW YORK, Plaintiff, v. Class C Maintenance, Inc., Defendant.
Plaintiff's Counsel Solomon and Solomon, P.C. Defendant- No Appearance.
Plaintiff's Counsel Solomon and Solomon, 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, Affirmation in Support of Plaintiff's Motion, with annexed exhibits 1-2
Plaintiff The Brooklyn Union Gas Company d/b/a National Grid New York ("Plaintiff") moves this Court for an Order granting it a default judgment pursuant to CPLR §3215. The Court hereby grants Plaintiff's motion.
Plaintiff commenced this action by filing a Summons and Complaint on June 17, 2020. Plaintiff alleges it incurred damages in the amount of $7,887.83 after Defendant Class C Maintenance, Inc. ("Defendant") damaged Plaintiff's facilities while working in the vicinity of 30 Sneden Avenue, Staten Island, NY (the "Premises"). Specifically, Plaintiff alleges that on or about March 17, 2018, Defendant excavated and performed work in the vicinity of the Premises and caused damage to Plaintiff's conduits, sewage lines, service lines and other gas facilities. According to the Plaintiff's affidavit of service, Plaintiff served Defendant with the Summons and Complaint on July 7, 2020. Plaintiff subsequently served Defendant with an additional notice pursuant to CPLR §3215(3) on August 20, 2020. Defendant has failed to appear in this Action.
The Court record shows that prior to the transfer of this matter to Civil Court, the Plaintiff filed a motion for default judgment on March 18, 2021. Plaintiff noticed the motion for April 30, 2021. An Amended Notice of Motion was filed on April 6, 2021 and Plaintiff noticed the Motion for May 6, 2021. However, the motion was not calendared for oral argument in this Court until April 11, 2022, on which date the Plaintiff failed to appear and the motion was denied Plaintiff represents that it failed to appear on such date due to a misunderstanding.
In its instant motion for default judgment, which was filed on May 3, 2022, Plaintiff's counsel states that "due to general practices and procedures in suing the file, routing the file, verifying service, and the logistical challenges Plaintiff faced due to COVID-19, including obtaining the Affidavit of Fact and obtaining account statements supporting the claim, along with obtaining court dates the matter is beyond the one year period for entering default judgments." Plaintiff's counsel states that "Section 3215(c) of the CPLR allows entry of judgments after one year has elapsed if Plaintiff can show a justifiable delay." Plaintiff's counsel further states that "affiant believes that the above facts show that the delay in time was justified and not a failure on the part of the Plaintiff to proceed."
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
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, 2021 WL 2213786 (2d Dept., 20121); Executive Order Nos. 202.14, 202.28, 02.38, 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 concluded on November 3, 2020.
The record shows that Defendant was in default as of July 27, 2020. 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 the Defendant by November 23, 2021.
Even when a motion for default judgment is unopposed, a motion for default judgment 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 this Action, the Plaintiff states that it was unable to move for default judgment within one year of Defendant's "due to general practices and procedures in suing the file, routing the file, verifying service, and the logistical challenges Plaintiff faced due to COVID-19, including obtaining the Affidavit of Fact and obtaining account statements supporting the claim, along with obtaining court dates." First, the Court finds that "general practices and procedures in suing the file, routing the file" and "verifying service" are not reasonable excuses for the delay. If a party chooses to bring an action and seek relief from a court by way of a lawsuit, then such party must conform with the requirements of the CPLR in order to prosecute such action. This is a duty that is placed upon each plaintiff who commences an action in New York and the mere weight of such a duty is not a reasonable excuse for a delay in moving for a default judgment.
Turning to Plaintiff's contention that it could not timely file the instant motion due to the "logistical challenges" it faced due to COVID-19, the Court finds that such general excuse is not sufficient to constitute a reasonable excuse for the delay. While the Court recognizes that the COVID-19 pandemic posed challenges to the practice of law, parties cannot rely only on generalized statements regarding the pandemic to show that they have a reasonable excuse for failing to timely move for a default judgment. As this Court stated in American Express National Bank v. Anthony Ferrera, et al., (Index No. CV-6107-19/RI),
... 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.)... 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.
In American Express v. Ferrera, this Court further held that "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." (See also American Express National Bank v. Hend Aziz, et al., (Index No. CV-004476-19/RI)).
However, despite the fact that the instant motion was filed more than a year after Defendant's default, the Court finds that Plaintiff initiated proceedings for the entry of judgment within one year from the Defendant's default and therefore the Complaint should not be dismissed. As noted above, CPLR §3215(c) states that the Court shall not enter judgment and shall dismiss the Complaint as abandoned "if the plaintiff fails to take proceedings for the entry of judgment within one year after the default." In Aurora Loan Services LLC v. Gross, the Appellate Division, Second Department held that
To avoid dismissal pursuant to CPLR 3215(c), "[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order" (US Bank N.A. v. Dorestant, 131 A.D.3d 467, 469, 15 N.Y.S.3d 142). Rather, "as long as 'proceedings' are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal" (Brown v. Rosedale Nurseries, 259 A.D.2d 256, 257, 686 N.Y.S.2d 22 [internal quotation marks omitted]), even if the plaintiff's motion is later withdrawn (see HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d 838, 839, 4 N.Y.S.3d 47). Aurora Loan Services, LLC v. Gross, 139 A.D.3d 772, 773 [2d Dept 2016].
When determining that the Supreme Court improvidently used its discretion when it sua sponte directed the dismissal of the complaint pursuant to CPLR §3215(c), the Court noted that the plaintiff had initiated proceedings for the entry of a judgment of foreclosure and sale within one year of the defendants' default by filing the request for judicial intervention seeking an ex parte order of reference and that "there was no evidence that the plaintiff intended to abandon the action." Id. at 744. In Aurora Loan Services v. Bandhu, the Court held that "it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)... nor is a plaintiff requires to specifically seek the entry of a judgment within a year." (Aurora Loan Services, LLC v. Bandhu, 175 A.D.3d 1470, 1471 [2d Dept 2019]). Rather, "as long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c)." (Id.)
In this action, Plaintiff clearly initiated proceedings for the entry of a judgment within one year of Defendant's default when it filed its original motion for default judgment March 18, 2021. Since Plaintiff made such application well before November 23, 2021, the Court finds that Plaintiff took the proceedings to obtain a judgment within a year of Defendant's default. The record shows that after Plaintiff filed an Amended Notice of Motion, the motion was not calendared until April 11, 2022. While Plaintiff failed to appear on such date, the Court finds that the record is devoid of evidence demonstrating Plaintiff's intent to abandon the action.
As to the merits of Plaintiff's motion, the Court finds that Plaintiff has established that Defendant was served with the Summons and Complaint and failed to file an answer or otherwise appear in this action. Furthermore, Plaintiff has submitted an Affidavit in Support by Michael Stirpe ("Stirpe"), who represents that he is a Manager of the SAP/Non-Utility Billing Department of National Grid U.S.A. Service Company, Inc., the Plaintiff's parent company. In his affidavit, Stirpe explains his personal knowledge of the Plaintiff's accounting methods and procedures. Stirpe details that based upon the books and records of the Plaintiff's corporation kept in the regular course of business, Plaintiff sustained damages caused by the Defendant in the amount of $7,887.83. When explaining such damages, Stirpe states that the invoice attached as Exhibit A to the motion demonstrates that Plaintiff's cost to repair the damage was $6,827.92 and that Plaintiff's use of vehicles for such repairs was $547.92. In addition to suffering a loss of product in the amount of $236.99, Stirpe explains that there was also an investigation fee of $275.00.
Based upon the papers submitted in connection with this motion, including the Stirpe affidavit and accompanying exhibits, the Court hereby grants Plaintiff's motion for a default judgment against the Defendant.
Accordingly, it is hereby
ORDERED that Plaintiff's motion for default judgment against the Defendant is granted; it is further
ORDERED that Plaintiff is awarded damages in the amount of $7,887.83; and it is
ORDERED that the Clerk of the Court shall enter the judgment accordingly.