Opinion
No. 2022-50516 Index No. CV-16164-20/BX
05-23-2022
The Hertz Corporation, Plaintiff, v. Dujion Hall, Defendant.
Unpublished Opinion
Jeffrey S. Zellan, J.
Plaintiff moves, by notice of motion, for a default judgment in this action seeking to recover for damages to a car owned by plaintiff and rented to defendant. Neither party appeared on the return date of this motion for oral argument, and the Court took the matter on submission without defendant's written opposition or appearance. For the reasons set forth below, the Court denies plaintiff's motion for a default judgment out of time, and dismisses the complaint as abandoned.
Plaintiff, as alleged in the process server's affidavit, served the summons and complaint in this action by so-called 'nail-and-mail' service, affixing a copy of the papers to defendant's residence door on January 15, 2021, and mailing a copy to defendant's residence on January 19, 2021. (Jan. 19, 2021 Affidavit of Wendy Feliz, at 1). Plaintiff subsequently mailed an additional copy of the summons and complaint on January 29, 2021. (Jan. 23, 2021 Affidavit of Tatyana Kotsyuba, at 1). Pursuant to CPLR 308(4), service upon defendant was complete, as alleged, on January 29, 2021, and defendant's response was due no later than March 1, 2021. Plaintiff alleges that defendant did not respond to the complaint, and served the instant motion. Although notice of the instant motion is dated March 1, 2022, the annexed proof of service indicates that plaintiff served its motion on March 3, 2022. (Mar. 3, 2022 Affidavit of Kayla Marble, at 1).
Pursuant to CPLR 3215(c), "[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, unless sufficient cause is shown why the complaint should not be dismissed." "[E]xcusing a party from compliance with the one-year deadline for seeking a default judgment is the exception rather than the rule," and requires specific evidence of extenuating circumstances from plaintiff. Consolidated Edison Co. of New York, Inc. v. P & T Contr. Corp., 202 NY Slip Op 30990(U), *3 (Sup. Ct., New York Co. 2020). As one court recently noted, "an excuse which is amorphous or otherwise specious constitutes no excuse at all," and an "excuse must be so presented with detailed articulable facts that are not amorphous, vague or subject to arbitrary interpretations." Definitive Healthcare v. Sun Knowledge Inc., 68 Misc.3d 1218 (A), *3-4 (Civ. Ct., Kings Co. 2020) (citations omitted).
In seeking leave to seek a default judgment out of time, plaintiff asserts that "[d]ue to general practices and procedures in suing the file, routing the file, verifying service, and the logistical challenges faced due to Covid-19, including obtaining the Affidavit of Fact and obtaining account statements supporting the claim, the matter is beyond the one year period for entering default judgments," and plaintiff "believes that the above facts show that the delay in time was justified and not a failure on the part of Plaintiff to proceed." (Mar. 1, 2022 Affirmation of Joshua Aron, at ¶¶ 5 and 8). However, the affidavit of fact in support of the instant motion - executed by a collection analyst employed by plaintiff and which itself annexes as exhibits all of the documentary evidence relied upon in the instant motion for a default judgment - was sworn on June 25, 2021, over eight months before plaintiff brought the instant motion. (Jun. 25, 2021 Affidavit of Richard Hester). There is no indication in plaintiff's papers why plaintiff needed so much additional time when all of the necessary statements and factual evidence appear to have been marshalled many months prior. Although the Court takes judicial notice of the grave effect of the pandemic upon the courts and the bar, the pandemic-related emergency tolls to the statute of limitations and other deadlines had already expired in November 2020, before this action was even commenced. See, Midland Funding LLC v. Velazquez, Index No. CV-6307-20/BX, slip op., at *1-2 (Civ. Ct., Bronx Co. Mar. 24, 2022) (discussing timing and impact of Governor's executive orders tolling deadlines). As such, plaintiff has not established good cause for its delay in seeking a default judgment and, pursuant to CPLR 3215(c), abandoned its claim. Accordingly, it is
ORDERED that plaintiff's motion for a default judgment is denied; and it is further
ORDERED that, pursuant to CPLR 3215(c), this action is dismissed as abandoned.
This constitutes the Decision and Order of the Court.