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Civil Court, City of New York,

MIDLAND CREDIT MANAGEMENT, INC., Plaintiff, v. Elizabeth RIOS, Defendant.

Index No. CV-000116-20/RI

Decided: June 09, 2022

Plaintiff's Counsel, Mandarich Law Group, LLP, 5965 Transit Road, 500, East Amherst, NY 14051

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


Plaintiff's Notice of Motion, Affirmation in Support of Plaintiff's Motion, with annexed exhibits 1-2

Plaintiff Midland Credit Management, Inc. (hereinafter, “Plaintiff”), commenced the underlying action against the Defendant Elizabeth Rios (“Defendant”) by Summons and Complaint dated December 17, 2019 seeking $1,441.13, the costs and disbursements of this action, and for such other and further relief as the Court deems just and proper. Plaintiff served the Defendant by substituted service on January 10, 2020.

On March 25, 2022, Plaintiff filed the within motion seeking a “judgment” against Defendant based upon her failure to appear in the action. The Court notes that Defendant has failed to file any opposition to this motion. Due to Defendant's failure to appear at the return date of this motion on May 18, 2022, the matter was marked fully submitted and the Court reserved decision on the motion.

According to the Plaintiff, Defendant failed to make monthly payments due pursuant to a Credit Agreement (“Agreement”) she entered into with Credit One Bank, N.A. (“Original Creditor”). Plaintiff represents that the Original Creditor charged off the account on or about September 13, 2019. Plaintiff further maintains that it purchased the Defendant's account from the Original Creditor on or about October 23, 2018 and commenced this Action on or about January 6, 2020. Plaintiff argues that its motion for a “judgment” should be granted since more than one year has lapsed since Defendant's default and that “Plaintiff was unable to move for a Default Judgment within one year due to the Pandemic.”


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 AD3d 857 (2d Dept., 2020). The latest executive order issued by former Governor Cuomo concluded on November 3, 2020.

Here, the Court notes that in Plaintiff's Notice of Motion, Plaintiff requests that the Court grant it “An Order granting Judgment together with such other and further relief as this Court may deem just and proper.” Furthermore, Plaintiff's Affirmation in Support repeatedly references Plaintiff's “Motion for Judgment” without specifying whether Plaintiff is seeking a default judgment, summary judgment or other form of judgment. Only at the conclusion of its affirmation in support does Plaintiff indicate that it is seeking a default judgment, explaining that “Plaintiff was unable to move for Default Judgment within one year due to the Pandemic.” While the Court is perplexed as to why Plaintiff does not specifically state that it is moving for a default judgment, the Court considers the motion to be a motion for a default judgment and will now proceed to the merits of the Plaintiff's motion.

The record shows that Defendant was in default as of February 10, 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 September 15, 2021. Plaintiff failed to make such motion until March 25, 2022, more than six months later. Such a lengthy delay is unacceptable and fatal to Plaintiff's motion.

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 AD3d 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 AD3d 55 (2d Dept., 2021), quoting Giglio v. NTIMP, Inc., 86 AD3d 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 default “due to the Pandemic.” Plaintiff does not give any details explaining how “the Pandemic” prevented it from moving for a default judgment until six months after the deadline for filing such motion had passed. Since this Court will not speculate in this Action as to how the Pandemic may have led to Plaintiff's patent failure to timely move for a default judgment, the Court finds that Plaintiff has failed to proffer a reasonable excuse for the delay.

Unfortunately, this is not the first time this Court has ruled on a default judgment motion in a consumer debt action where the plaintiff tries to overcome an inexcusable delay in moving for default judgment by merely stating the “Pandemic” was the reason for such delay. 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)).

Based upon the Plaintiff's failure to demonstrate a reasonable excuse for the delay in filing the instant, untimely motion or a sufficient cause as to why the Complaint should not be dismissed pursuant to CPLR § 3215(c), the Court denies Plaintiff's motion for a default judgment and dismisses the Complaint as abandoned.

The foregoing constitutes the Decision and Order of the Court.

Brendan T. Lantry, J.

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