PACE v. MY CHOICE SOFTWARE LLC (2024)

I. Recitation of the Papers as Required by CPLR 2219 (a)

Upon reading Plaintiff's unopposed Motion for a default judgment (“Motion”), together with all supporting documents, the Motion is decided as follows.

II. Procedural History

On June 21, 2023, Plaintiff, an attorney, commenced the instant action to recover $5,355 in legal fees, plus costs, and attorney fees by filing a Summons and Complaint. On July 30, 2020, Plaintiff filed a Motion for a default judgment (“Motion #1”). By Decision and Order dated October 30, 2023, the Honorable J. M. denied Motion #1 by reason of the nonappearance of either side on the return date. On November 23, 2023, Plaintiff filed the instant (second) Motion for a default Judgment (“Motion #2”). Defendant did not oppose Motion #2, the instant Motion.

III. Discussion

Plaintiff moved pursuant to CPLR 3215 for a default Judgment against Defendants MY CHOICE SOFTWARE, LLC, and MUMME. Defendants have not Answered or otherwise appeared in this action and thus are in default and Plaintiff's Motion was timely brought within one year after the Defendants defaulted (CPLR 3215 [c]).

The Defendants' default did not give rise to a mandatory ministerial duty to enter a default against them, rather, in order to obtain a default judgment, the Plaintiff had to submit evidence demonstrating that he had a viable cause of action against the Defendants (Resnick v Lebovitz, 28 AD3d 533, 534 [1st Dept 2006]). “The quantum of proof necessary to support an application for a default judgment is not exacting; however, some firsthand confirmation of the facts forming the basis for the claim must be proffered” (Guzzetti v City of New York, 32 AD3d 234, 325-236 [1st Dept 2006, McGuire, J. concurring]). Here, Plaintiff failed to submit proof that he complied with 22 NYCRR § 137.6, which requires an attorney to serve clients with notice of their right to arbitrate a fee dispute before commencing a lawsuit. Service of such notice was a condition precedent to filing this action (see Abramson Law Group, PLLC v Bell, 28 Misc 3d[A] *1 [App Term, 1st Dept 2010]). Plaintiff's Motion is denied.

IV. Order

Accordingly, it is

ORDERED that Plaintiff's Motion for a default judgment is DENIED.

This constitutes the DECISION and ORDER of the Court.

Wendy Changyong Li, J.