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Civil Court, City of New York,


Index No. CV-006627-19/BX

Decided: October 07, 2022

Plaintiff's motion for judgment is Denied.

Plaintiff moves for an order seeking entry of a default judgment for Defendant's failure to answer or otherwise appear in this action. Plaintiff appeared at the calendar call; Defendant did not appear. Upon Plaintiff's application, the Court marked the instant motion submitted without opposition.

Standard of Review

Northeastern Operating Engineers Federal Credit Union (“NOEFCU” or “Plaintiff”) began this action by filing a summons and complaint on April 8, 2019. Plaintiff seeks entry of a default judgment against Defendant Leonidez Alvarez (“Alvarez”) for the sum of $7,373.59. Plaintiff's original request for entry of a default judgment, filed on March 10, 2020, was rejected by the Bronx Civil Clerk on April 14, 2022, as Plaintiff's application to the clerk was deficient. (Clerk's Rejection Notice). Thereafter, Plaintiff filed this motion on April 27, 2022.

“To establish entitlement to a default judgment, a plaintiff must submit proof of the facts constituting the claim, and proof of the defendants’ defaults, satisfy the notice requirements for the motion and timely move for relief.” American Tr. Ins. Co. v. Avelar, 2020 N.Y. Slip Op. 33622(U), *2, 2020 WL 6396850 (Sup. Ct., N.Y. Co. 2020) (internal citations omitted).

According to the affidavit of service annexed to Plaintiff's motion, the summons and complaint were served upon a person of suitable age and discretion at Defendant's residence within the state on April 27, 2019, and the process server mailed a second copy of the papers to Defendant at the same address on April 30, 2019. The court clerk's stamp on the affidavit of service bears a filing date of May 13, 2019. A court record review indicates that Defendant did not file an answer.1

In support of its motion, Plaintiff submits an affirmation from Michael C. Anderson, Esq. (“Anderson”) of Barnes, Iaccarino & Shepherd, LLP, attorneys for Plaintiff. In his May 5, 2020, affirmation, Anderson details the case's procedural history. Also annexed to the affirmation, inter alia, are copies of the summons and complaint, the non-military affirmation, and NOEFCU employee Timothy J. Faughnan's affidavit in support of the motion for default judgment. Copies of NOEFCU's original motion for default judgment were found in the court file.

Plaintiff's original motion for default judgment bears a Bronx Civil Court date stamp of March 10, 2020. However, the papers were defective in that they lacked a notice of motion as required by CPLR 2214(a) and (b), and consisted only of an attorney's affirmation and annexed exhibits.2 “It is within the court's discretion to deny a motion that fails to comply with the statute.” Nazor v. Sydney Sol Group, Ltd., 2021 N.Y. Slip Op. 31656(U), *5, 2021 WL 1966348 (Sup. Ct., N.Y. Co. 2021), citing Abizadeh v. Abizadeh, 159 A.D.3d 856, 857, 72 N.Y.S.3d 566 (2d Dept. 2018). The motion may not have been calendared because it lacked the statutorily required notice.

CPLR 3215(c) provides that “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.” Although courts have noted that “excusing a party from compliance with the one-year deadline for seeking a default judgment is the exception rather than the rule,” the determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court. Hertz Corp. v. Hall, 75 Misc. 3d 1216(A), *1, 2022 WL 2284699 (Civ. Ct., Bronx Co. May 23, 2022) (citation omitted). See also, Giglio v. NTIMP, Inc., 86 A.D.3d 301, 926 N.Y.S.2d 546 (2d Dept. 2011).

Here, though the original motion was deficient, Plaintiff's counsel filed a default judgment motion within one year of Defendant's default. Upon learning from the clerk's office that they had no record of the original motion, Plaintiff's counsel filed the instant motion for default judgment. Although Plaintiff did not explain the delay in following up with the clerk's office about its default application, the Court takes judicial notice that court appearances were restricted, and cases administratively adjourned to reduce court traffic in adherence to state and federal suggested staffing levels due to the Covid-19 pandemic.3 See also, In re New York City Mayor's Office of Special Enforcement, Inv. No. 2017-00440, 2020 N.Y. Misc.. LEXIS 2123, *3 (Sup. Ct., N.Y. Co. May 20, 2020) (collecting authorities affecting court operations during the pandemic). Reduced court staffing may explain why Plaintiff's counsel was not notified of the flaw. Accordingly, the Court will not dismiss the complaint as Plaintiff diligently addressed the deficiency upon learning of it.

That said, Plaintiff failed to submit a new military search affidavit with the instant motion. State and federal civil relief acts require that upon a defendant's default in any action or proceeding, a plaintiff must, prior to entering judgment, file an affidavit establishing that: “(1) the defendant is not in the military service of the United States or an ally [or the military service of the State of New York]; (2) plaintiff's investigation was conducted after the default occurred; and (3) such investigation was performed shortly before the submission of the affidavit of military service.” Sunset 3 Realty v. Booth, 12 Misc. 3d 1184(A), *3, 2006 WL 2037934, 824 N.Y.S.2d 766 (Sup. Ct., Suffolk Co. 2006) (citations omitted). See also, Servicemembers Civil Relief Act, as amended and codified as 50 U.S.C. § 3901 et seq.; and New York Soldiers’ and Sailors’ Civil Relief Act of 1951, as amended and codified as Military Law §§ 300 et seq. Given the longstanding and compelling state and federal interests in protecting those in the military service from unwitting defaults, scrupulous compliance is necessary and should not be waived. Military Law § 300 (legislative findings and declaration of emergency in enacting civil relief); 50 U.S.C. § 3902(a) (declaring that the purpose of civil relief was “to provide for, strengthen, and expedite the national defense”); and 229 West 113th St. v. Lamb, 2015 N.Y. Slip Op. 31488(U), *3-4, 2015 WL 4773218 (Civ. Ct., N.Y. Co. 2015) (collecting cases and denying leave to dispense with military search investigation and default judgment).


Accordingly, Plaintiff's motion for default judgment pursuant to CPLR 3215(i) is DENIED without prejudice and with leave to renew upon proper proof.

This constitutes the decision and order of the Court.


1.   As this is a consumer credit transaction, this matter is subject to enhanced pleading requirements imposed by 22 N.Y.C.R.R. § 208.6(d)(1). See also, CPLR 3215(a).

2.   The notice of motion “shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.” CPLR 2214(a). CPLR 2214(b) sets out the timetable for service of the notice of motion and supporting affidavits along with the time allotted for filing of an answer and cross-motion.

3.   See, Ctrs. for Disease Cntrl. and Prev., COVID-19 Staffing Guidance for State, Tribal, Local, and Territorial Health Departments, (last accessed Oct. 7, 2022).

Verena C. Powell, J.

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