CAVALRY SPV LLC v. HERMAN (2022)

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

Papers Numbered

Plaintiff's Notice of Motion Affirmation/Affidavit with annexed exhibit 1-2

Upon the foregoing cited papers, the decision on Plaintiff's Motion for Default is as follows:

Plaintiff Cavalry SPV I, LLC (hereinafter “Plaintiff”) brings the instant motion, dated June 7, 2021, seeking an Order granting a default judgment against Michael Herman (hereinafter “Defendant”) in the amount of $7,384.71. Defendant has neither appeared in this action nor submitted any written opposition to the motion.

Plaintiff initiated this action on September 1, 2020, by filing the summons and complaint in the Supreme Court of Richmond County. Plaintiff performed substitute service upon the Defendant pursuant to CPLR 308(2) on September 21, 2020 and filed an affidavit of service with the Court on September 25, 2020. Defendant has not filed an answer or otherwise responded to the complaint. On July 27, 2021, the Hon. Wayne M. Ozzi transferred the matter to the Civil Court, pursuant to CPLR 325(d).

On December 16, 2020, the Supreme Court received notification that the additional notice required under 22 NYCRR 202.27-B was returned as undeliverable.

Section 202.27-B of the Uniform Civil Rules for the Supreme Court and the County Court states, in part:

“(2) The clerk promptly shall mail to the defendant the envelope containing the additional notice set forth in paragraph (1) of this subdivision. No default judgment based on defendant's failure to answer shall be entered unless there has been compliance with this subdivision and at least 20 days have elapsed from the date of mailing by the clerk. No default judgment based on defendant's failure to answer shall be entered if the additional notice is returned to the court as undeliverable, unless the address at which process was served matches the address of the defendant on a Certified Abstract of Driving Record issued from the New York State Department of Motor Vehicles. Receipt of the additional notice by the defendant does not confer jurisdiction on the court in the absence of proper service of process.” 22 NYCRR 202.27-B 1

As the additional notice sent by the Court was returned as undeliverable, the Court may only enter a default judgment if the address where service was performed matches Defendant's address on a certified driver's abstract issued by the New York State Department of Motor Vehicles. In this matter, Plaintiff has not supplied the Defendant's driver's abstract; and therefore, this Court cannot enter judgment against the Defendant at this time.

Accordingly, Plaintiff's motion is denied without prejudice.

The foregoing constitutes the Decision and Order of the Court.

FOOTNOTES

1.   The Uniform Rules for the Civil Court of the City of New York contains the same requirement and language under Section 208.6(h).

Robert J. Helbock Jr., J.